Terms Of Service

By accessing or using the Kuna services, solutions, or tools provided by Kuna (the “Service”), you (“Customer”) and Platinum Europe SA, (“Kuna”), agree to the terms and conditions of this Agreement (the “Agreement”) which constitute the entire agreement between Customer and Kuna and govern Customer’s access and use of the Service. This Agreement governs, applies to, and is hereby incorporated into one (1) or more orders (each, an “Order”) executed by Kuna and the customer identified in the Order. If Customer is entering into this Agreement on behalf of a company, or other legal entity (“Entity”), Customer represents that Customer has the authority to bind such Entity to the terms and conditions of this Agreement, and in such case the term “Customer” shall refer to such Entity. If Customer does not have such authority, or if Customer does not agree with these terms and conditions, Customer must not accept this Agreement and may not use the Service. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THE TERMS OF THIS AGREEMENT BEFORE ACCESSING OR USING THE SERVICE. BY ACCESSING OR USING SUCH SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

1. Definitions

  • “Account” means a Kuna account created by or on behalf of Customer within the Service.
  • “API” means the application programming interfaces developed and enabled by or on behalf of Kuna that permit Customer to access certain functionality provided by the Service.
  • “Customer Data” means all electronic data or information submitted by Customer to the Service.
  • “Kuna Service Level Agreement” (“SLA”) means that Service Level Agreement attached hereto as Exhibit A and incorporated by reference herein for all purposes as part of the Terms of Service, to which Customer agrees to be bound.
  • “Service” means the Kuna services, solutions, or tools provided by Kuna.
  • “Subscription Plan” means the subscription plan and the functionality and services associated with the plan for which Customer subscribes.
  • “Subscription Term” means the period starting upon User’s purchase of a Subscription Plan and ending on the termination thereof as provided in this Agreement.
  • “Software” means software provided by Kuna that allows Customer to use functionality in connection with the Service.
  • “Third Party Services” means third party products and services that are provided by entities or individuals other than Kuna.
  • “User” means an individual authorized by Customer to use the Service through the Accounts as a user and/or administrator as identified through a unique login.

2. Trial Services

Prior to subscribing to the Service on an annual or monthly basis, Customer shall have the right, following creation of an Account, for a period of up to two (2) weeks (“Trial Period”), at no charge to Customer, to access and use the Kuna IT operations management services solution and tools provided by Kuna on a trial basis (“Trial Services”). Trial Services are provided for evaluation purposes and are not supported, may contain bugs or errors, and may be subject to additional terms. THE TERM “SERVICE” AS USED HEREUNDER SHALL NOT INCLUDE THE “TRIAL SERVICES” AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Upon expiration of the Trial Period, Customer must complete an Order to purchase a Subscription Plan to the Service or must discontinue all use of the Trial Services. If Customer does not purchase a Subscription Plan to the Service, Customer shall be downgraded to Kuna’s free plan and features that are offered through the Service that were made available during the Trial Period will be disabled (“Free Plan”). THE “FREE PLAN” IS PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. Kuna may, in its sole discretion, discontinue Customer’s access to the Trial Services or the Free Plan at any time and without notice.

3. Subscription Term

The initial term of the Customer’s subscription will be as set forth on the Order (the “Initial Term”). Customer’s subscription will automatically renew at the end of the Initial Term and each subsequent term (each a “Renewal Term” and, the Initial Term together with all Renewal Terms, the “Term”), until either party terminates the agreement. For monthly plans, Customer can terminate through the Billing section of the product user interface any time prior to the end of the then-current Renewal Term. For all other plans, Customer must provide a written termination notice to Kuna at least 30 days before expiration of the then-current Renewal Term. The Subscription Charges applicable to Customer’s subscription to the Service for any Renewal Term shall be Kuna’s standard subscription charges (“Subscription Charges”) for the Subscription Plan to which Customer has subscribed as of the time such subsequent Renewal Term commences.

4. Payment Terms

Customer shall pay all fees specified in each Order (“Fees”) in accordance with the payment terms set forth therein. If Customer fails to pay the Fees within ten (10) business days of Kuna’s notice to Customer that payment is due or delinquent, in addition to Kuna’s other remedies, Kuna may, without further notice, immediately suspend or terminate Customer’s access to and use of the Service. If Customer chooses to upgrade the Subscription Plan or increase the number of Users during the Subscription Term (each a “Subscription Upgrade”) by amending its Order, any incremental Subscription Charges associated with such Subscription Upgrade shall be prorated over the remaining period of the Term. No refunds or credits for Subscription Charges or other fees or payments will be provided to Customer if Customer elects to downgrade the Subscription Plan or decrease the number of Users during the Subscription Term. Downgrading the Subscription Plan may cause loss of content, features, or capacity of the Service as available to Customer under the Accounts, and Kuna does not accept any liability for such loss. Kuna reserves the right to contact Customer about special pricing if Customer maintains an exceptionally high number of alerts, or creates other excessive stress on the Service. Unless otherwise set forth on an Order, Kuna’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Kuna has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Kuna with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer is responsible for any bank charges related to Customers’ payment of any Fees incurred under this Agreement. If Customer pays by credit card, the Service provides an interface for the account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by Kuna, or they may obtain a receipt from within the Service to track subscription status. Customer hereby authorizes Kuna, or its third-party payment processor, to bill Customer’s credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan and Order until the expiration or termination of the Term, and Customer further agrees to pay any Subscription Charges so incurred. Kuna shall have the right to increase or decrease Fees associated with a Subscription Plan from time to time, in its sole and absolute discretion.

5. License Grant

Kuna grants, and Customer accepts, a license to use and access the Service via on-line software, solely for the internal business purposes of the Customer and in accordance with the Customer’s Subscription Plan and the terms and conditions set forth herein, during the Term. This license is limited, worldwide, nonexclusive, non-transferable, non-assignable, non-sublicensable and subject to this Agreement.

6. Customer Obligations

6.1 Responsibilities

Customer shall access and use the Service only in accordance with this Agreement and all applicable laws and regulations and shall be responsible for ensuring that all Users comply with the terms and conditions of this Agreement. Access to and use of the Service is restricted to the specified number of individual Users permitted under Customer’s Subscription Plan. Customer agrees and acknowledges that each User will be identified by a unique username and password (User Account) and that a User Account may only be used by one (1) individual. Customer will not share a User Account among multiple individuals. Customer shall be responsible for all acts or omissions of its Users. Customer shall protect its credentials and those of its individual Users and shall be liable for any damages incurred to Kuna as a result of Customer’s failures to protect the same.

6.2 Restrictions

Customer agrees that it will not (a) license, sublicense, assign, transfer, sell, distribute, time share or otherwise commercially exploit or make the Service available to any unaffiliated third party, other than authorized Users in furtherance of Customer’s internal business purposes as expressly permitted by this Agreement; (b) post, upload, publish, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; or (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances (including but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances); (c) attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any Kuna server, by hacking, password “mining” or any other illegitimate means; (d) harvest or collect user names, email addresses or any other client identifying information by electronic or other means for the purpose of sending unsolicited email or other communications; (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; or (g) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software. Kuna will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law and Customer agrees to voluntarily submit to any such investigation. Kuna may involve and cooperate with law enforcement authorities in prosecuting users who violate the terms and conditions of this Section 6.2. Customer acknowledges that Kuna has no obligation to monitor Customer’s access to or use of the Service or to review or edit Customer’s Data, but has the right to do so for the purpose of operating the Service, to ensure Customer’s compliance with the terms and conditions of this Section 6.2, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

7. Confidential Information

Except as otherwise required by law, each Party shall keep all Confidential Information (defined below) in confidence and shall not without the other Party’s prior written consent, disclose or otherwise make available, directly or indirectly, any Confidential Information to anyone other than that Party’s employees and of their representatives who need to know the same in the performance of each respective obligations hereunder. “Confidential Information” means all information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement, which the Disclosing Party designates as confidential at the time of disclosure or reasonably should be understood to be confidential given the nature of information and the circumstances of disclosure. Confidential Information shall not include any information which is: (i) already publicly known; (ii) created by the Receiving Party without reference to any Confidential Information and without a breach of any obligation to the Disclosing Party; or (iii) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party. The Receiving Party may disclose Confidential Information of the Disclosing Party as required by potential investors or necessary pursuant to acquisition or merger activity directly related to the Receiving Party, as part of the associated due diligence process or the extent required by applicable law, regulation or legal process, provided that the Receiving Party (i) provides prompt written notice to the extent legally permitted, (ii) provides reasonable assistance, at Disclosing Party’s cost, in the event the Disclosing Party wishes to oppose the disclosure, and (iii) limits disclosure to that required by law, regulation or legal process. Confidential Information shall remain the sole property of the Disclosing Party, and each party acknowledges and agrees that it does not acquire any rights therein. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and except as otherwise authorized by the Disclosing Party, in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any order form to any third party other than its affiliates and their legal counsel and accountants without the other party’s prior written consent. Each party shall promptly notify the other in writing of the existence of any unauthorized knowledge, possession, or use of the other party’s Confidential Information.

8. Data Security

Kuna shall maintain commercially reasonable administrative, technical, physical, and organizational safeguards designed to protect against unauthorized or unlawful access to or use of the Service and Customer’s Data and against accidental loss or destruction of, or damage to, the Service and Customer’s Data. Kuna shall notify Customer following discovery of any breaches of security. Kuna shall reasonably cooperate with Customer to mitigate the effects of such breach of security on Customer. Upon the request of Kuna, Customer agrees to cooperate in periodically changing its passwords and take such other actions as may be reasonably necessary in order to protect against security breaches.

9. System Support

During the Term, Kuna will use reasonable commercial efforts to provide phone and email based support to the Customer.

10. Third Party Service

If Customer decides to use Third Party Services, Customer’s access to and use of such Third Party Services is governed solely by the terms and conditions of such Third Party Services. Kuna does not endorse and is not responsible or liable for such Third Party Services. Customer irrevocably waives any claim against Kuna with respect to such Third Party Services. Kuna is not liable for any damage or loss caused by or in connection with Customer’s use of any such Third Party Services.

11. Termination

Except as otherwise provided herein, either party may terminate this Agreement before the end of the Initial Term or any subsequent Renewal Term only if the other party has breached a material term of the Agreement, and the breaching party has failed to remedy such breach within thirty (30) calendar days following written notice from the non-breaching party. In its sole and absolute discretion, Kuna may discontinue the Service, at any time, and without notice to Customer. In the event of termination due to Kuna’s uncured material breach or Kuna’s determination to discontinue the Service, Kuna shall refund to Customer the pre-paid, unused fees for the remainder of the applicable Term. Upon any termination of this Agreement, Customer shall immediately cease all use of the Service and Kuna shall revoke all passwords and access to the Service. Following the termination or cancellation of Customer’s subscription to the Service, Kuna reserves the right to delete all Customer’s Data in the normal course of operation. Customer’s Data cannot be recovered once Customer’s Account is canceled. Kuna reserves the right to modify, suspend or terminate the Service (or any part thereof), Customer’s Account or Customer’s and/or Users’ rights to access and use the Service, and remove, disable and discard any of Customer’s Data if Kuna believes, in good faith, that Customer or Users have violated these Terms. Unless legally prohibited from doing so, Kuna will use commercially reasonable efforts to contact Customer directly via email to notify Customer when taking any of the foregoing actions. Kuna shall not be liable to Customer, Users, or any other third party for any such modification, suspension or discontinuation of Customer’s rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by Customer or Users may be referred to law enforcement authorities at Kuna’s sole discretion. Sections 1, 3, 4, 6, 7, 11, 12, 13, 14, 15 and 16 shall survive any expiration or termination of this Agreement.

12. Intellectual Property Rights

Kuna shall own all of its Intellectual Property and Customer shall have or obtain no right, title or interest in and to Kuna’s Intellectual Property. Subject only to limited rights to access and use the Service as expressly set forth herein, all rights, title and interest in and to the Service, software and other components of or used to provide the Service, including all related patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights, will remain with and belong exclusively to Kuna. Kuna shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback Kuna receives from Customer or Customer’s Users.

13. Warranties

Each party represents and warrants to the other party that (i) has the full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and (ii) Kuna further represents that the Service will materially conform to the applicable documentation, if any. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, Kuna MAKES NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE. NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM Kuna OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FOR THE AVOIDANCE OF DOUBT, NO WARRANTIES ARE MADE WITH RESPECT TO ANY TRIAL SERVICES, BETA VERSIONS, OR FREE PLAN.

14. Limitation of Liability

EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 7 AND 15 OR ANY FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY FOR DIRECT DAMAGES EXCEED SUBSCRIPTION CHARGES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 7 AND 15 OR ANY FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY IN CONTRACT, TORT, OR OTHERWISE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST PROFITS, REVENUE OR DATA) OR PUNITIVE DAMAGES ARISING OUT OF ANY PROVISION OF THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Kuna HAVE ANY LIABILITY FOR CLAIMS RELATING TO BUSINESS DECISIONS MADE BY CUSTOMER IN RELIANCE UPON ANY OF THE SERVICE. FOR THE AVOIDANCE OF DOUBT, Kuna SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO ANY TRIAL SERVICES, BETA VERSION, OR FREE PLAN.

15. Indemnification

15.1 Indemnification by Kuna

Kuna shall defend and indemnify Customer against all liabilities, damages, losses, claims and expenses (including reasonable attorney’s fees), incurred by Customer that arise solely from a third party alleging that the Kuna Service infringes the U.S. patent or copyright of a third party (a “Claim Against Customer”) only to the extent Customer: (a) used the Kuna Service in full compliance with and only as expressly authorized under this Agreement and any applicable documentation; provided that Customer; (b) promptly notifies Kuna of the Claim Against Customer; (c) allows Kuna to have sole control of the defense and settlement of the Claim Against Customer (though Customer may participate in its own defense at its own expense and provided further that Kuna may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability); and (d) provides Kuna with the authority, information and assistance reasonably necessary for the defense and settlement of the claim at Kuna’s expense. If a Claim Against Customer is brought or reasonably threatened, Kuna shall have the option, at its sole expense to (i) modify the Kuna Service so that it no longer infringes or misappropriates; or (ii) obtain a license for Customer’s continued use of the Kuna Service in accordance with this Agreement. If neither of the foregoing remedies are commercially feasible, Kuna may terminate the license for the Service and refund Customer any unused, prepaid Subscription Charges for the remainder of the Subscription Term of such subscription after the effective date of termination. Kuna will have no liability or obligation under this Section with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by Customer; (ii) modification of the Service by anyone other than Kuna; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing. The indemnity set forth in this Section 15.1 shall be Customer’s sole and exclusive remedy for any Claim Against Customer.

15.2 Indemnification by Customer

Customer shall defend and indemnify Kuna against all liabilities, damages, losses, claims and expenses (including reasonable attorney’s fees), incurred by Kuna that arise from a third party in connection with Customer’s Data, or Customer’s use of the Service in breach of this Agreement (a “Claim Against Kuna”), to the extent that Kuna (a) promptly notifies Customer of a Claim Against Kuna; (b) to have sole control of the defense and settlement of the Claim Against Kuna (though Kuna may participate in its own defense at its own expense and provided further that Customer may not settle any Claim Against Kuna without Kuna’s consent unless the settlement unconditionally releases Kuna of all liability and does not require any payment of money by Kuna); and (c) provides Customer with the authority, information and assistance reasonably necessary for the defense and settlement of the claim at Customer’s expense. The indemnity set forth in this Section 15.2 shall be Kuna’s sole and exclusive remedy for any Claim Against Kuna.

16. Miscellaneous

16.1 General Provisions

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld) except that either party may assign this Agreement to an affiliate or to a successor to all or substantially all of its business or assets (whether through merger, stock sale, asset sale or other transaction) upon notice to the other party (“Change of Control Assignment”). To the extent any such Change of Control Assignment results in the assignment of this Agreement to a direct competitor of the other party, such party shall have the one-time right to immediately terminate this Agreement, which right must be exercised within thirty (30) days of such party’s receipt of notice of such Change of Control Assignment. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. This Agreement, including any exhibits and addenda hereto and all order forms, when executed, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any order form, the terms of such exhibit, addendum or order form shall prevail. Any additional, inconsistent or conflicting terms and conditions contained in any purchase order (“PO”) issued by Customer shall be of no force or effect, regardless of any statement in a PO to the contrary and even if the PO is signed or accepted by Kuna. Should any term, covenant, or provision hereof, or the application thereof, be determined by a valid, final, non-appealable order to be invalid or unenforceable, the remaining terms, covenants, or provisions shall continue in full force and effect without regard to the invalid or unenforceable provision. In such event, such term, covenant, or provision shall be deemed modified to impose the maximum duty permitted by law and such term, covenant or provision shall be valid and enforceable in such modified form as if separately stated in and made a part of this Agreement. The headings of each section contained herein are provided only for convenience of reference and form no part of the substantive agreement of the Parties. All rights and obligations of the parties that by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of the Agreement. The Service is subject to United States export controls. The Service may not be downloaded or otherwise exported or re-exported in violation of United States export laws. Customer is downloading and using the Service at Customer’s own risk. Notwithstanding the foregoing, Kuna may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. In such event, Kuna shall notify Customer not less than thirty (30) days prior to the effective date of any such amendment and Customer’s continued use of the Service following the effective date of any such amendment may be relied upon by Kuna as Customer’s consent to any such amendment. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. All notices related to this Agreement shall be in writing. Neither party shall be responsible for delays or performance failures that are caused from events that are beyond their reasonable control and without its fault or negligence, including, without limitation, acts of God, nature, riots, acts of war, fire or earthquake (“Force Majeure Event”). In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods. There are no third party beneficiaries to this Agreement. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The Service and all accompanying documentation are “commercial items,” developed exclusively at private expense; consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in the applicable acquisition regulations. If Customer is the U.S. Government or any agency or department thereof (“Government”), Government agrees that the Service and the documentation are licensed hereunder (a) only as a commercial item, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement. This Agreement will in all respects be governed by, interpreted, construed and enforced in accordance with the laws of the State of Texas, without giving effect to its choice of law rules. The parties further specifically agree that any action or proceeding arising out of or in connection with this Agreement will be in a federal or state court of appropriate venue and subject matter jurisdiction located in the State of Texas. The Parties agree to waive the right to a trial by jury as to all disputes. All required notices will be delivered by reputable overnight delivery service and by e-mail to the addresses set forth on the Order with a copy sent to the CEO of Kuna, to Kuna’s address as specified on https://erpkuna.com/ and such notices shall be effective if dispatched by hand (which shall be deemed given upon delivery), e-mail, or reliable overnight delivery service (which shall be deemed given on business day after mailing. Kuna may use Customer’s name and logo and disclose the nature of the Services provided hereunder in Kuna’s business operations and marketing efforts, including, without limitation its website. Any signature (including any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record) hereto or to any other certificate, agreement or document related to this Agreement shall have the same legal validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law and the parties hereby waive any objection to the contrary.

16.2 Publicity

During the Term, Kuna shall have the right to reproduce and display Customer’s trademarks on Kuna’s website and marketing materials for purposes of identifying Customer as a Kuna customer.

Exhibit A: Kuna Service Level Agreement

This Kuna Service Level Agreement (“SLA”) is a policy governing the use of Kuna under the terms of the Kuna Subscription Agreement (the “Agreement”) between Platinum Europe SA (“Kuna”) and the Customer named on the applicable Order (“Customer”). This SLA applies separately to each account using the Services. Unless otherwise provided herein, this SLA is subject to the terms of the Agreement and capitalized terms will have the meaning specified in the Agreement. Kuna reserves the right to change the terms of this SLA in accordance with the Agreement.

Definitions

“Service(s)” refers to hosted alert & notifications management and on-call scheduling services provided by Kuna as a Software as a Service. The Service provides email and API interfaces to receive alerts from customer systems, processes received alerts using policies defined by customers, and sends alert notifications to the users using email, SMS, phone, and iOS & Android push notifications.

“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which Kuna was in the state of “unavailable”. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any Kuna SLA Exclusions (defined below).

“Unavailable” or “Unavailability” means that Kuna was not able to process incoming alerts and send notifications to users within five (5) minutes of receiving the alerts, according to the policies and notification rules defined by Customer.

A “Service Credit” is a dollar credit, calculated as set forth below, that Kuna may credit back to an eligible account. Service Credits are calculated as a percentage of the total charges paid by Customer as subscription fees (excluding overage charges).

Service Commitment

Kuna will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage (defined below) of at least 99.9%, in each case during any month of service (the “Service Commitment”). In the event Kuna does not meet the Service Commitment, Customer will be eligible to receive a Service Credit as described below.

Measurement

Kuna uses a proprietary system that consists of both internal and 3rd party monitoring services to measure whether the Services are available and Customer agrees that this system will be the sole basis for resolution of any dispute that may arise between Customer and Kuna regarding this SLA.

Monthly Uptime less than 99.9% but equal to or greater than 99.0%, 5% Service Credit Monthly Uptime less than 99.0% but equal to or greater than 97.0%, 10% Service Credit Monthly Uptime less than 97.0%, 20% Service Credit

Kuna will apply any Service Credits only against future Kuna payments otherwise due by Customer. At Kuna’s discretion, Kuna may issue the Service Credit to the credit card Customer used to pay for the billing cycle in which the Unavailability occurred. Service Credits will not entitle Customer to any refund or other payment from Kuna. A Service Credit will be applicable and issued only if the credit amount for the applicable month is greater than one dollar ($1 USD). Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the Agreement, Customer’s sole and exclusive remedy for any unavailability, non-performance, or other failure by Kuna to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.

Support Response Time Commitment

Kuna shall use commercially reasonable efforts to respond to requests from Customer regarding errors with the Service made between 9 am and 5 pm CST within the following time frames following confirmed receipt by Kuna of an error support request from Customer, and shall use commercially reasonable efforts to provide a workaround and/or permanent fix with a level of effort commensurate with the Severity Level of the error. To receive a Service Credit, Customer must submit a claim by emailing Kuna Support at support@erpkuna.com. To be eligible, the credit request must be received by Kuna by the end of the second billing cycle after which the incident occurred and must include the dates and times of each Unavailability incident that Customer is claiming. If the Monthly Uptime Percentage of such request is confirmed by Kuna and is less than the Service Commitment, then Kuna will issue the Service Credit to Customer within one billing cycle following the month in which the Customer request is confirmed by Kuna. Customer’s failure to provide the request and other information as required above will disqualify Customer from receiving a Service Credit.

Kuna SLA Exclusions

The Service Commitment does not apply to any unavailability, suspension or termination of the Services: (i) that result from a suspension of the Agreement; (ii) caused by factors outside of Kuna’s reasonable control, including any Force Majeure Event; (iii) that result from Customer’s acts or omissions, equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Kuna’s direct control); (iv) arising from Kuna’s suspension and termination of the Service or of Customer’s right to use the Services in accordance with the Agreement, and (v) routine scheduled maintenance; (collectively, the “Kuna SLA Exclusions”). If availability is impacted by factors other than those used in Kuna’s Monthly Uptime Percentage calculation, then Kuna may still issue a Service Credit considering such factors at Kuna’s sole and absolute discretion.

Updated: August 31st, 2020