Subscription Agreement

BACKGROUND

IndyKite operates and provides a data platform that allows its Subscribers to mobilize their data by providing its Subscribers with access to IndyKite’s platform, tools, documentation and services, and if applicable, other support services. If you do not agree to the terms and conditions contained in this Agreement you may not use any IndyKite services.

ACCEPTANCE OF AGREEMENT

IndyKite Subscription Agreement (the “Agreement”) govern the use of IndyKite Platform (See Section 2 for this and other capitalized terms) and constitute a legally binding contract between Subscriber and IndyKite.

By creating an account and using the Service and/ Platform, by signing an order form that references this Agreement or by indicating Subscriber’s acceptance of this Agreement,   Subscriber agree that they have read, understood and agree to be bound by this Agreement, Data Processing Agreement, Service Level Agreement, Order Form and any related agreement hereto.

If an individual is ordering the Service and entering into this Agreement on behalf of an entity, it represents that they have the authority to bind that entity to the terms and conditions laid out in this Agreement. If the individual does not have such authority or they do not agree to these terms and conditions, neither the individual nor the entity may use the Service.

IndyKite reserves the right to perform revisions and update this Agreement from time to time. IndyKite will notify all paying Subscribers of material changes to the content, price and terms in this Agreement, inclusive of the Order Form and/or any agreement related hereto via email, dashboard or account center. Subscriber’s continued use of the Services following the notice of such changes will be deemed as acceptance of the changes.

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1. DEFINITIONS

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Agreement” means this Subscription Agreement, including Data Processing Agreement, Service Level Agreement, Order Form and any other agreement related hereto.

“Subscriber” means the individual, company or other legal entity and Affiliates of that company or entity (for so long as they remain Affiliates) accepting this Agreement to use the Service.

“Subscriber Data” means any data that Subscriber or its Users input into the Platform for Processing as part of the Service, including any Personal data forming part of such data.

“Documentation” means the applicable documentation and its usage guides and policies, as updated from time to time, accessible via https://docs.indykite.com/

“Fees” means the applicable fees associated with the Purchased Services, as designated in one or more applicable Order Forms.

“Free Services” means Services that IndyKite makes available to Subscriber free of charge. Free Services exclude Purchased Services.

“Identity” means a uniquely identifiable User and/or NPE, which Subscriber Data is managed by the Platform.

“IndyKite” means the IndyKite Inc. company, a US organization incorporated in Delaware, and any of its relevant subsidiaries.

“Non-Person Entity” (“NPE”) means a uniquely identifiable non-human entity, whose data is Subscriber Data when submitted to the Platform.

“Non-IndyKite Application” means Web-based, mobile, offline or other software functionality that interoperates with a Service that is provided by Subscriber or a third party.

“Order Form” means an ordering document or an online purchasing order specifying the Services to be provided hereunder that is entered into between the Parties or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it was an original Party hereto.

“Personal data” means any information deemed “personal data” or “personal information” (or analogous variations of such terms) under applicable privacy or data protection laws and regulations, including any information relating to an identified or identifiable natural person, whose data is Subscriber Data when submitted to the Platform.

“Platform” means the software applications, tools, application programming interfaces (APIs) and connectors, provided by Indykite as its online data platform as a service offering, and if applicable, together with programs, networks and equipments that Indykite uses to make such platform available to Subscriber.

“Process” or “Processing” means any operation of set of operations which is performed on Subscriber Data or on sets of Subscriber Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Purchased Services” means Services that Subscriber purchases under an Order Form.

“Renewal Term” means the renewal period as outlined in the relevant Order Form(s).

“Services” means the SaaS services that are ordered by Subscriber under an Order Form, and made available online by IndyKite, including Platform, associated IndyKite offline or mobile components, as described in the Documentation. Services include Free Services and Purchased Services. “Services” exclude Non-IndyKite Applications.

“Subscription Term” means the subscription period, as designated in the applicable Order Form(s), for which Subscriber has obtained Purchased Services.

“User” means a uniquely identifiable human entity, whose data is Subscriber Data when submitted to the Platform.

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2. GRANT OF ACCESS RIGHT

• IndyKite grants to Subscriber a right to access the Platform on the terms set forth in this Agreement and the applicable Order Form(s).
• IndyKite grants to Subscriber a non-exclusive, non-transferrable, worldwide and revocable right to access and use the Platform and use it from its own software. The right is granted only for the Subscription Term of an applicable Order Form.
• The access right granted in Clause 2.1 does not include the right to access or use the source code or object code, or otherwise access parts of the Platform which are not intentionally made available by IndyKite.
  
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3. OWNERSHIP TO THE PLATFORM

• IndyKite shall own and retain all rights, titles, and/or ownership to all Intellectual Property Rights and Know-How (as defined herein) related to the Platform, including, but not limited to, rights, titles, and ownership to algorithms, source code, object code and accompanying documentation, user interface design, graphics, illustrations, drawings, images, sound music, videos, concepts, techniques, and specifications.
• ““Intellectual Property Rights” include, but are not limited to patent rights, design rights, and copyrights.  
• “Know-How” includes, but is not limited to all industrial, technical, marketing, and commercial information and techniques in any form, and all designs and artistic creations, regardless of whether it is patentable, registered as an Intellectual Property Right or protected as trade secrets.
  
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4. SUBSCRIPTION FEES AND PAYMENT

• Fees. Subscriber shall pay all required subscription fees as stated in the relevant Order Form(s). Except as otherwise specified herein or in an Order Form, (i) fees are based on Purchased Services and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term. IndyKite reserves the right to make changes to fees for the Service and shall notify Subscribers of any such change at least sixty (60) days  prior to it being effective. If IndyKite receives no objection in writing, within thirty (30) days of this notification, Subscribers continued use of the Services following the notice of such changes, constitutes their acceptance of the changes.
• Invoicing and payment. Subscriber will provide IndyKite with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to IndyKite. If Subscriber provides credit card information, Subscriber authorizes IndyKite to charge such credit card for all Purchased Services listed in the Order Form for the initial Subscription Term and any Renewal Term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form(s). If the Order Form specifies that payment will be by a method other than a credit card, IndyKite will invoice Subscriber in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Subscriber is responsible for providing complete and accurate billing and contact information to IndyKite and notifying IndyKite of any changes to such information.
• Taxes. Fees do not include any taxes, VAT, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Subscriber is responsible for paying all Taxes associated with its purchases hereunder.
• Delayed payment(s) . Compound interest rate per December 31 each year is added to the due amount.
  
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5. USE OF SERVICES

• Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to the Platform are purchased as subscriptions for the Subscription Term stated in the applicable Order Form; and (b) Subscriber agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by IndyKite regarding future functionality or features.
• Usage limits. The Services and access to the Platform are subject to usage limits specified in the Order Forms and Documentation. If Subscriber exceeds a contractual usage limit, IndyKite may work with Subscriber to seek to reduce Subscriber’s usage so that it conforms to that limit. If Subscriber is unable or unwilling to abide by a contractual usage limit, Subscriber will execute an Order Form for additional quantities of the applicable Services promptly upon IndyKite’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section above (Clause 4.2).
• Subscriber responsibilities. Subscriber will (a) be responsible for compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Subscriber Data, the means by which Subscriber acquired Subscriber Data, Subscriber’s use of Subscriber Data with the Services, and the interoperation of any Non-IndyKite Applications with which Subscriber uses Services or the Platform, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and the Platform and notify IndyKite promptly of any such unauthorized access or use, (d) use Services and the Platform  only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-IndyKite Applications with which Subscriber uses the Services or the Platform. Any use of the Services in breach of the foregoing by Subscriber or its Affiliates that in IndyKite’s judgment threatens the security, integrity or availability of IndyKite’s Services, may result in IndyKite’s immediate suspension of the Services and Subscriber’s access to and right to use the Platform. However, IndyKite will use commercially reasonable efforts under the circumstances to provide Subscriber with notice and an opportunity to remedy such violation or threat prior to any such suspension.
• Usage restrictions. Subscriber will not (a) make any Services or the Platform available to anyone other than Subscriber, or use any Services or the Platform for the benefit of anyone other than Subscriber or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Services or the Platform, or include any Service or the Platform in a service bureau or outsourcing offering, (c) use the Services or any Non-IndyKite Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services or any Non-IndyKite Application to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or the Platform or its related systems or networks, (g) permit direct or indirect access to or use of the Services or the Platform in a way that circumvents a contractual usage limit, or use the Services to access, copy or use any of IndyKite’s intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of the Services or any part, feature, function or user interface thereof, (i) copy the Platform except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of the Services or the Platform, other than framing on Subscriber's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law or Indykite’s license, if any, disassemble, reverse engineer, or decompile the Services or the Platform or access it to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Services or the Platform, (iii) copy any ideas, features, functions or graphics of the Services or the Platform, or (iv) determine whether the Services or the Platform are within the scope of any patent.
  
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6. DURATION AND TERMINATION

• Term of Agreement. The Agreement commences from the Order Form Effective Date (as specified in the Order Form) and continues until all subscriptions hereunder have expired or have been terminated.
• Subscription Term. The term of each subscription shall be as specified in the relevant Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year terms, unless Subscriber provides a written notice (email acceptable) atleast thirty (30) days before the end of the relevant Subscription Term. Unless required by law in the state or country Subscriber resides, IndyKite is not obligated to provide notice of such renewal. Subscriber acknowledge that (i) their failure to read or (ii) their inability to receive creates no liability for IndyKite or any third-party service.
• Termination. IndyKite reserves the right to suspend or terminate the Service, in part or full with immediate effect, without incurring liability of any kind. For example, but without limitation, Indykite may suspend or terminate the service if Subscriber or their User(s) do not comply with the term in this Agreement or any related agreement hereto, if the Service is used in a way that cause IndyKite legal liability or disrupt other’s use of the Service or damage to IndyKite’s business or reputation, or any other reason. Subscriber may terminate this Agreement with sixty (60) days’ notice in the event of a material breach of the Agreement. A material breach includes, but is not limited to, insolvency, bankruptcy or  breach of a material terms in this Agreement.
  
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7.  DISCLAIMER OF WARRANTIES

• Except as expressly provided herein, Indykite makes no warranty of any kind, whether express, implied, statutory or otherwise, and IndyKite expressly disclaims all implied warranties including any implied warranty of availability, merchantability, non-infringement, design, condition, capacity, accuracy, completeness, performance and quality of the Service, fitness for a particular purpose, to the maximum extent permitted by applicable law. Except for the limited warranties provided in clause 6.2, the Platform and Serves and provided “as is”. Subscriber acknowledge that the Service is not error-free, may not operate uninterrupted and agree to use the Service and the Documentation at their own risk and discretion as the Service will be continually developed and changes or removal of functionality may not be given notice of. Indykite will from time to time have to carry out updates and maintenance due to technical, security or operational reasons, during which the Service may be unavailable. In addition, IndyKite does not warrant that the Service or any equipment, system, or network on which the Service is used will be free of vulnerability to intrusion or attack.
  
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8.  LIMITATION OF LIABILITY

• IndyKite shall in no event be liable for any lost profits, lost savings, loss of reputation, loss of goodwill, indirect, incidental, punitive, special, or consequential damages arising out of or in connection with this Agreement or the use of the Services or the Platform, whether or not such damages are based on tort, warranty, contract or other legal theory, even if IndyKite has been advised or is aware of the possibilities of such damages.
• IndyKite’s aggregate and cumulative liability towards Subscriber shall in no event exceed the total amount paid by Subscriber to IndyKite under this Agreement during the last 12 months prior to the claim being notified to IndyKite in writing.
• Any claims for damages must be notified to IndyKite within ninety (90) calendar days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim.
  
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9.  INDEMNITY

• Subscriber shall indemnify and hold IndyKite and its Affiliates, directors, officers, employees, and agents harmless from and against all losses, liabilities, damages, and expenses, including reasonable attorneys’ fees and costs, incurred as a result of any claims, demands, actions or other proceedings by third parties to the extent caused by unlawful actions or omissions by Subscriber or any users that has been given access to the Platform and/or Service by Subscriber. IndyKite reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Subscriber. Subscriber shall not settle any claim without IndyKite’s written consent if the settlement requires IndyKite to take any action, refrain from taking any action, or to admit any liability.
  
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10. CONFIDENTIALITY

• “Confidential Information” means any and all technical, financial, commercial and other information of a confidential or sensitive nature contained in any information disclosed, directly or indirectly, by either Party, in whatever form, including Subscriber Data and including Intellectual Property Rights and Know-How as defined in Clause 3.2 and 2.3, with the exception of that part of such information which can be demonstrated:
  
  - was, at the time of disclosure, in the public domain;
  
  - was, after the time of disclosure, published or otherwise became part of the public domain through no fault of the party receiving the Confidential Information; or,
  
  - was already in legal possession of the party receiving the Confidential Information at the time of disclosure.

• Each of the Parties acknowledges that the other Party’s Confidential Information is of highly confidential and valuable nature and in no event shall a Party claim or acquire any ownership rights in the Confidential Information of the other Party.
• The Party receiving the Confidential Information (“Receiving Party”) shall keep the Confidential Information confidential, shall not disclose the same to any third party, and shall not use the same for any purpose other than permitted fulfilling the Receiving Party’s obligations under this Agreement.
• The Receiving Party shall confine access to the Confidential Information to only those of its employees and officers who have a well-reasoned need to receive it in order to perform this Agreement, and who are bound to secrecy as far as legally permissible by suitable employment agreements. The Receiving Party shall have implemented internal policies for handling Confidential Information on the Effective Date of this Agreement, including, but not limited to, access restriction protocols, regular employee training and adequate technical information security measures. The Receiving Party shall ensure that employees and officers are:
  
  - informed of the fact that they will be handling Confidential Information prior to accessing the Confidential Information, and
  
  - receive proper training in handling Confidential Information prior to accessing the Confidential Information.

• The Receiving Party shall be entitled to disclose Confidential Information to its subcontractors on a strictly need to know basis, provided that such subcontractors have first entered into an agreement containing confidentiality, non-disclosure and restricted use obligations no less stringent than those contained in this Agreement. The Receiving Party shall be fully responsible for its subcontractors’ implementation of and compliance with the confidentiality obligations hereunder.
• The Receiving Party may also disclose the Confidential Information to relevant authorities when required by operation of law, regulation or court order, provided that the Receiving Party
  
  - gives the disclosing Party immediate notice unless such notice is unlawful; and,
  
  - refrains from disclosing Confidential Information other than what is strictly required by law, regulation or court order.
  
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11. DATA PROTECTION AND SECURITY 

• Compliance with applicable law. Subscriber may select the Personal Data it elects to input into the Platform in its sole discretion. IndyKite has no control over the nature, scope or origin of, or the means by which Subscriber acquires Personal Data processed as part of the Service. Subscriber is solely responsible for ensuring that it complies with any legal, regulatory or similar restrictions applicable to the types of data Subscriber elects to process as part of the Service.

• User Legal Basis Assurance. Subscriber is solely responsible for obtaining, and represents and covenants that it has obtained or will obtain prior to Processing by Platform, all necessary consents, licenses and approvals for the processing, or otherwise has valid legal basis under EU Data Protection Laws for the Processing of, any Personal Data provided by Subscriber or its users as part of the Service.
  
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12. MISCELLANEOUS 

• Marketing and Attribution. Unless otherwise agreed, Indykite may refer to Subscriber as one of Indykite’s Subscriber and use Subscriber’s logo as part of such reference and/or use the logo, trademarks, and trade names in IndyKite’s marketing materials including website, email, social media, and press releases, provided that IndyKite comply with trademark usage requirements.
• Assignment and set off. Subscriber shall not assign any rights or obligations under his Agreement without prior written consent from IndyKite. Subscriber shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due under this Agreement.
• Severability. If any part of this Agreement is found to be invalid due to mandatory statutory law or a final legal judgment, it shall only affect those parts found to be invalid. The remaining parts of this Agreement will still be enforceable.
• Entire agreement. This Agreement constitutes the entire understanding and agreement struck between the Parties and supersedes any arrangements, promises or agreements made or existing between the Parties prior to or simultaneously with this Agreement.
• Surviving provisions. Clauses 3, 4, 8, 9, 10, and 12 shall survive any termination or expiration of the Agreement.
• Choice of law and legal venue. This Agreement  shall be governed by and construed in accordance with the laws of the State of California including all matters of construction, validity, performance, and enforcement and without giving effect to without giving effect to the choice of law principles thereof. The Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded. The venue for any disputes, controversies, or claims arising out of this Agreement shall be heard in San Francisco.
• Compliance with external requirements. Subscriber is solely and fully responsible for ensuring that their use of the Service is in compliance with applicable laws, treaties and regulations.
• Anti-bribery and anti-corruption compliance. Subscriber agree to comply with all applicable law and regulations on anti-bribery, including but not limited to the UK Bribery Act 2010, the US Foreign Corrupt Practices Act 1977 and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
• No third party beneficiaries.  The rights and obligations under this Agreement  are intended for the sole exclusive benefit for the parties hereto and shall not be deemed to give any legal or equitable right, remedy or claim whatsoever by any other parties, except as otherwise explicitly stated in the Agreement.
• Independent parties. Nothing contained herein or done pursuant to this Agreement  shall constitute either party being the agent or employee of the other party for any purpose or constitute the parties as partners or joint venturers. Except as expressly permitted under Agreement, neither party may bind or act on behalf of the other party.
• Waiver. In no event shall any delay, failure or omission of IndyKite in enforcing, exercising or pursuing any right, claim or remedy under the Agreement be deemed as a waiver thereof, unless such right, claim or remedy has been expressly waived in writing. The waiver of a breach or right under the Agreement will not constitute a waiver of any other or subsequent breach or right.
• Notice of unauthorized use. Subscriber must immediately report to IndyKite and use reasonable efforts to immediately stop any use of the Service in violation of the terms under this Agreement,  that they  become aware of or suspect.
• Force majeure. Force Majeure means any circumstances beyond the reasonable control of either party, including, without limitation, fire, explosion, epidemics, strikes or other labour disputes, riots or other civil disturbances, voluntary or involuntary compliance with any law, order regulation, recommendation or request of any governmental authority, and errors or downtime in networks, power supply, gateway or similar failures of communication. IndyKite will not have any liability for their failure to perform any of their contractual obligations under this Agreement  arising out of or in connection with events of Force Majeure.