Capitalized terms used in this document are defined in the Glossary.
2.1 Grant of Rights. Keito grants to Customer a non-exclusive, non-transferable and worldwide right to use the Cloud Service (including its implementation and configuration), Cloud Materials, and Documentation solely for Customer’s and its Affiliates’ internal business operations. Permitted uses and restrictions of the Cloud Service also apply to Cloud Materials and Documentation.
2.2 Authorized Users. Customers may permit Authorized Users to use the Cloud Service. Usage is limited to the Usage Metrics and volumes stated in the Order Form or as per Subscription. Access credentials for the Cloud Service may not be used by more than one individual but may be transferred from one individual to another if the original user is no longer permitted to use the Cloud Service. The customer is responsible for breaches of the Agreement caused by Authorized Users.
2.3 Acceptable Use Policy. With respect to the Cloud Service, Customer will not: (a) disassemble, decompile, reverse-engineer, copy, translate, or make derivative works, (b) transmit any content or data that is unlawful or infringes any intellectual property rights, or (c) circumvent or endanger its operation or security.
2.4 Verification of Use. The customer will monitor its own use of the Cloud Service and report any use in excess of the Usage Metrics and volume. Keito may monitor use to verify compliance with Usage Metrics, volume, and the Agreement.
2.5 Suspension of Cloud Service. Keito may suspend or limit the use of the Cloud Service if continued use may result in material harm to the Cloud Service or its users. Keito will promptly notify the Customer of the suspension or limitation. Keito will limit a suspension and/or limitation in time and scope as reasonably possible under the circumstances.
2.6 Third-Party Web Services. The Cloud Service may include integrations with web services made available by third parties (other than Keito Products or its Affiliates) that are accessed through the Cloud Service and subject to terms and conditions with those third parties. These third-party web services are not part of the Cloud Service and the Agreement does not apply to them.
2.7 Mobile Access to Cloud Service. Authorized Users may access certain Cloud Services through mobile applications obtained from third-party websites such as Android or Apple app stores. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
2.8 On-Premise Components. The Cloud Service may include on-premise components that can be downloaded and installed (including updates) by the Customer. The System Availability SLA does not apply to these components. In addition to the support policy referenced in the Order Form or Subscription Form, specific Keito support and maintenance policies apply to the On-Premise Components
3.1 Provisioning. The Keito provides access to the Cloud Service as described in the Agreement.
3.2 Support. Keito provides support for the Cloud Service as referenced in the Order Form or as per Subscription.
3.3 Security. Keito uses reasonable security technologies in providing the Cloud Service. As a data processor, Keito will implement technical and organizational measures referenced in the Order Form or in subscription request to secure personal data processed in the Cloud Service in accordance with applicable data protection law.
3.4 Modifications. (a) The Cloud Service and Keiot Policies may be modified by Keito. Keito will inform Customer of modifications by email, the support portal, release notes, Documentation or the Cloud Service. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features for the Cloud Service, which Customer may use subject to the then-current Supplement and Documentation. (b) If Customer establishes that a modification is not solely an enhancement and materially reduces the Cloud Service, Customer may terminate its subscriptions to the affected Cloud Service by providing written notice to Keito within thirty days after receipt of Keito’s informational notice.
3.5 Analyses. Keito or their Affiliates may create analyses utilizing, in part, Customer Data and information derived from Customer’s use of the Cloud Service and Consulting Services as set forth below (“Analyses”). Analyses will anonymize and aggregate information and will be treated as Cloud Materials. Unless otherwise agreed, personal data contained in Customer Data is only used to provide the Cloud Service and Consulting Services. Analyses may be used for the following purposes: a) product improvement (in particular product features and functionality, workflows, and user interfaces) and development of new Keito products and services, b) improving resource allocation and support, c) internal demand planning, d) training and developing machine learning algorithms, e) improving product performance, f) verification of security and data integrity g) identification of industry trends and developments, creation of indices, and anonymous benchmarking.
4.1 Customer Data. The customer is responsible for the Customer Data and entering it into the Cloud Service. Customer grants to Keito, their Affiliates and subcontractors a nonexclusive right to process Customer Data solely to provide and support the Cloud Service.
4.2 Personal Data. Customers will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
4.3 Security. The customer will maintain reasonable security standards for its Authorized Users’ use of the Cloud Service. Customers will not conduct or authorize penetration tests of the Cloud Service without advance approval from Keito.
4.4 Access to Customer Data. (a) During the Subscription Term, Customer can access their Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations stated in the Documentation. (b) Before the Subscription Term expires, Customers may use Keito’s self-service export tools (as available) to perform a final export of Customer Data from the Cloud Service. (c) Following the end of the Agreement, Keito will delete or overwrite the Customer Data remaining on servers hosting the Cloud Service unless applicable law requires retention. Retained data is subject to the confidentiality provisions of the Agreement. (d) In the event of third party legal proceedings relating to the Customer Data, Keito will cooperate with Customers and comply with applicable law (both at Customer’s expense) with respect to the handling of the Customer Data.
5.1 Fees and Payment. The customer will pay fees as stated in the Order Form or as per subscription request. After prior written notice, Keito may suspend Customer’s use of the Cloud Service until payment is made. Customers cannot withhold, reduce or set-off fees owed nor reduce Usage Metrics during the Subscription Term. All Order Forms are non-cancellable and fees non-refundable.
5.2 Taxes. Fees and other charges imposed under an Order Form will not include taxes, all of which will be for Customer’s account. The customer is responsible for all taxes, other than Keito’s income and payroll taxes. The customer must provide to Keito any direct pay permits or valid tax-exempt certificates prior to signing an Order Form. If Keito is required to pay taxes (other than its income and payroll taxes), the Customer will reimburse Keito for those amounts and indemnify Keito for any taxes and related costs paid or payable by Keito attributable to those taxes.
6.1 Term. The Subscription Term is as stated in the Order Form or Subscription period as per subscription request.
6.2 Termination. A party may terminate the Agreement: (a) upon thirty days written notice of the other party’s material breach unless the breach is cured during that thirty-day period, (b) as permitted under Sections 3.4(b), 7.3(b), 7.4(c), or 8.1(c) (with termination effective thirty days after receipt of notice in each of these cases), or (c) immediately if the other party files for bankruptcy, becomes insolvent, or makes an assignment for the benefit of creditors, or otherwise materially breaches Sections 11 or 12.6. 6.3 Refund and Payments. For termination by Customer or an 8.1(c) termination, Customer will be entitled to (a) a pro-rata refund in the amount of the unused portion of prepaid fees for the terminated subscription calculated as of the effective date of termination, and (b) a release from the obligation to pay fees due for periods after the effective date of termination.
6.4 Effect of Expiration or Termination. Upon the effective date of expiration or termination of the Agreement: (a) Customer’s right to use the Cloud Service and all Keito Confidential Information will end, (b) Confidential Information of the disclosing party will be returned or destroyed as required by the Agreement, and (c) termination or expiration of the Agreement does not affect other agreements between the parties.
6.5 Survival. Sections 1, 5, 6.3, 6.4, 6.5, 8, 9, 10, 11, and 12 will survive the expiration or termination of the Agreement.
7.1 Compliance with Law. Each party warrants its current and continuing compliance with all laws and regulations applicable to it in connection with: (a) in the case of Keito, the operation of Keito’s business as it relates to the Cloud Service, and (b) in the case of Customer, the Customer Data and Customer’s use of the Cloud Service.
7.2 Good Industry Practices. Keito warrants that it will provide the Cloud Service: (a) in substantial conformance with the Documentation; and (b) with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Cloud Service.
7.3 Remedy. Customer’s sole and exclusive remedies and Keito’s entire liability for breach of the warranty under Section 7.2 will be: (a) the re-performance of the deficient Cloud Service, and (b) if Keito fails to re-perform, Customer may terminate its subscription for the affected Cloud Service. Any termination must occur within three months of Keito’s failure to re-perform.
7.4 System Availability. (a) Keito warrants to maintain an average monthly system availability for the production system of the Cloud Service as defined in the applicable service level agreement or Supplement (“SLA”). (b) The customer’s sole and exclusive remedy for Keito’s breach of the SLA is the issuance of a credit in the amount described in the SLA. The customer will follow Keito’s posted credit claim procedure. When the validity of the service credit is confirmed by Keito in writing (email permitted), the Customer may apply the credit to a future invoice for the Cloud Service or request a refund for the amount of the credit if no future invoice is due. (c) In the event, Keito fails to meet the SLA (i) for four consecutive months, or (ii) for five or more months during any twelve months period, or (iii) at a system availability level of at least 95% for one calendar month, Customer may terminate its subscriptions for the affected Cloud Service by providing Keito with written notice within thirty days after the failure.
7.5 Warranty Exclusions. The warranties in Sections 7.2 and 7.4 will not apply if: (a) the Cloud Service is not used in accordance with the Agreement or Documentation, (b) any non-conformity is caused by Customer, or by any product or service not provided by Keito, or (c) the Cloud Service was provided for no fee.
7.6 Disclaimer. Except as expressly provided in the Agreement, neither Keito nor its subcontractors make any representation or warranties, express or implied, statutory or otherwise, regarding any matter, including the merchantability, suitability, originality, or fitness for a particular use or purpose, non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error-free. The customer agrees that it is not relying on the delivery of future functionality, public comments or advertising of Keito or product roadmaps in obtaining subscriptions for any Cloud Service.
8.1 Claims Brought Against Customer. (a) Keito will defend Customer against claims brought against Customer and its Affiliates by any third party alleging that Customer’s and its Affiliates’ use of the Cloud Service infringes or misappropriates a patent claim, copyright, or trade secret right. Keito will indemnify Customer against all damages finally awarded against Customer (or the amount of any settlement Keito enters into) with respect to these claims. (b) Keito’s obligations under Section 8.1 will not apply if the claim results from (i) Customer’s breach of Section 2, (ii) use of the Cloud Service in conjunction with any product or service not provided by Keito, or (iii) use of the Cloud Service provided for no fee. (c) In the event, a claim is made or likely to be made, Keito may (i) procure for Customer the right to continue using the Cloud Service under the terms of the Agreement, or (ii) replace or modify the Cloud Service to be non-infringing without a material decrease in functionality. If these options are not reasonably available, Keito or Customer may terminate Customer’s subscription to the affected Cloud Service upon written notice to the other.
8.2 Claims Brought Against Keito. The customer will defend Keito against claims brought against Keito, and their Affiliates and subcontractors by any third party related to Customer Data. The customer will indemnify Keito against all damages finally awarded against Keito, and their Affiliates and subcontractors (or the amount of any settlement Customer enters into) with respect to these claims.
8.3 Third-Party Claim Procedure. (a) The party against whom a third-party claim is brought will timely notify the other party in writing of any claim, reasonably cooperate in the defense and may appear (at its own expense) through counsel reasonably acceptable to the party providing the defense. (b) The party that is obligated to defend a claim will have the right to fully control the defense. (c) Any settlement of a claim will not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
8.4 Exclusive Remedy. The provisions of Section 8 state the sole, exclusive, and entire liability of the parties, their Affiliates, Business Partners, and subcontractors to the other party, and is the other party’s sole remedy, with respect to covered third party claims and to the infringement or misappropriation of third-party intellectual property rights.
9.1 Unlimited Liability. Neither party will exclude or limit its liability for damages resulting from (a) the parties’ obligations under Section 8.1(a) and 8.2, (b) unauthorized use or disclosure of Confidential Information, (c) either party’s breach of its data protection and security obligations that result in unauthorized use or disclosure of personal data, (d) death or bodily injury arising from either party’s gross negligence or wilful misconduct, or (e) any failure by Customer to pay any fees due under the Agreement.
9.2 Liability Cap. Subject to Sections 9.1 and 9.3, the maximum aggregate liability of either party (or its parent, respective Affiliates, or Keito’s subcontractors) to the other or any other person or entity for all events (or series of connected events) arising in any twelve-month period will not exceed the annual subscription fees paid for the applicable Cloud Service directly causing the damage for that twelve-month period. Any “twelve-month period” commences on the Subscription Term start date or any of its yearly anniversaries.
9.3 Exclusion of Damages. Subject to Section 9.1: (a) neither party (nor its parent, respective Affiliates, or Keito’s subcontractors) will be liable to the other party for any special, incidental, consequential, or indirect damages, loss of goodwill or business profits, work stoppage or for exemplary or punitive damages, and (b) Keito will not be liable for any damages caused by any Cloud Service provided for no fee.
9.4 Risk Allocation. The Agreement allocates the risks between Keito and the Customer. The fees for the Cloud Service and Consulting Services reflect this allocation of risk and limitations of liability.
10.1 Keito Ownership. Keito, their Affiliates or licensors own all intellectual property rights in and related to the Cloud Service, Cloud Materials, Documentation, Consulting Services, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to Keito, their Affiliates and licensors.
10.2 Customer Ownership. The customer retains all rights in and related to the Customer Data. Keito may use Customer-provided trademarks solely to provide and support the Cloud Service.
10.3 Non-Assertion of Rights. Customer covenants, on behalf of itself and its successors and assigns, not to assert against Keito, their Affiliates or licensors, any rights, or any claims of any rights, in any Cloud Service, Cloud Materials, Documentation, or Consulting Services.
11.1 Use of Confidential Information. (a) The receiving party will protect all Confidential Information of the disclosing party as strictly confidential to the same extent it protects its own Confidential Information and not less than a reasonable standard of care. Receiving Party will not disclose any Confidential Information of the disclosing party to any person other than its personnel, representatives or Authorized Users whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in Section 11. The customer will not disclose the Agreement or the pricing to any third party. (b) Confidential Information of either party disclosed prior to the execution of the Agreement will be subject to Section 11. (c) In the event of legal proceedings relating to the Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to the handling of the Confidential Information.
11.2 Exceptions. The restrictions on use or disclosure of Confidential Information will not apply to any Confidential Information that (a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (b) is generally available to the public without breach of the Agreement by the receiving party, (c) at the time of disclosure, was known to the receiving party free of confidentiality restrictions, or (d) the disclosing party agrees in writing is free of confidentiality restrictions.
11.3 Publicity. Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that SAP may use Customer's name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of Keito’s marketing efforts (including reference calls and stories, press testimonials, site visits, SAPPHIRE participation). The customer agrees that Keito may share information on Customer with Keito and its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with Keito.
12.1 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
12.2 No Waiver. A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
12.3 Electronic Signature. Electronic signatures that comply with applicable law are deemed original signatures.
12.4 Regulatory Matters. Keito Confidential Information is subject to export control laws of various countries, including the laws of India, the United States, and Singapore. Customer will not submit Keito Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export SAP Confidential Information to countries, persons or entities if prohibited by export laws.
12.5 Notices. All notices will be in writing and given when delivered to the address set forth in an Order Form with a copy to the legal department. Notices by Keito relating to the operation or support of the Cloud Service and those under Sections 3.4 and 5.1 may be in the form of an electronic notice to Customer’s authorized representative or administrator identified in the Order Form.
12.6 Assignment. Without Keito’s prior written consent, the Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. Keito may assign the Agreement to its Affiliates.
12.7 Subcontracting. Keito may subcontract parts of the Cloud Service or Consulting Services to third parties. Keito is responsible for breaches of the Agreement caused by its subcontractors.
12.8 Relationship of the Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
12.9 Force Majeure. Any delay in the performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
12.10 Governing Law. The Agreement and any claims relating to its subject matter will be governed by and construed under the laws of India, without reference to its conflicts of law principles. All disputes will be subject to the exclusive jurisdiction of the courts located in Pune, Maharashtra. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (where enacted) will not apply to the Agreement. Either party must initiate a cause of action for any claim(s) relating to the Agreement and its subject matter within one year from the date when the party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s). A person who is not a party to the Agreement has no right to enforce any term of this Agreement.
12.11 Entire Agreement. The Agreement constitutes the complete and exclusive statement of the agreement between Keito and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties, except as permitted under Section 3.4. An Agreement will prevail over terms and conditions of any Customer-issued purchase order, which will have no force and effect, even if Keito accepts or does not otherwise reject the purchase order.
1.1 “Affiliate” of a party means any legal entity in which a party, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
1.2 “Agreement” means an Order Form and documents incorporated into an Order Form.
1.3 “Authorized User” means any individual to whom Customer grants access authorization to use the Cloud Service that is an employee, agent, contractor or representative of (a) Customer, (b) Customer's Affiliates, and/or (c) Customer’s and Customer’s Affiliates’ Business Partners.
1.4 “Business Partner” means a legal entity that requires the use of a Cloud Service in connection with Customer’s and its Affiliates’ internal business operations. These may include customers, distributors, service providers and/or suppliers of Customer.
1.5 “Cloud Service” means any distinct, subscription-based, hosted, supported and operated on-demand solution provided by Keito under an Order Form or Subscription request.
1.6 “Cloud Materials” mean any materials provided or developed by Keito (independently or with Customer’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Customers. Cloud Materials do not include the Customer Data, Customer Confidential Information or the Cloud Service.
1.7 “Confidential Information" means (a) with respect to Customer: (i) the Customer Data, (ii) Customer marketing and business requirements, (iii) Customer implementation plans, and/or (iv) Customer financial information, and (b) with respect to Keito: (i) the Cloud Service, Documentation, Cloud Materials and analyses under Section 3.5, and (ii) information regarding Keito research and development, product offerings, pricing, and availability. (c) Confidential Information of either SAP or Customer also includes information which the disclosing party protects against unrestricted disclosure to others that (i) the disclosing party or its representatives designates as confidential at the time of disclosure, or (ii) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.
1.8 “Consulting Services” means professional services, such as implementation, configuration, custom development, and training, performed by Keito’s employees or subcontractors as described in any Order Form or Subscription request and which are governed by the Supplement for Consulting Services or similar agreement.
1.9 “Customer Data” means any content, materials, data, and information that Authorized Users to enter into the production system of a Cloud Service or that Customer derives from its use of and stores in the Cloud Service (e.g. Customer-specific reports). Customer Data and its derivatives will not include Keito’s Confidential Information.
1.10 “Documentation” means Keito’s then-current technical and functional documentation as well as any roles and responsibilities descriptions, if applicable, for the Cloud Service which is made available to Customer with the Cloud Service.
1.11 “Order Form” means the ordering document for a Cloud Service that references the GTC.
1.12 “Keito Policies” means the operational guidelines and policies applied by Keito to provide and support the Cloud Service as incorporated in an Order Form.
1.13 “Subscription Request” means the ordering document for a Cloud Service that references the GTC as per the customer pays for a certain subscription term
1.14 “Subscription Term” means the term of a Cloud Service subscription identified in the applicable Order Form, including all renewals.
1.15 “Supplement” means the supplemental terms and conditions that apply to the Cloud Service and that are incorporated in an Order Form.
1.16 “Usage Metric” means the standard of measurement for determining the permitted use and calculating the fees due for a Cloud Service as set forth in an Order Form or Subscription Request.