Alira Terms and Conditions | Kocho
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Alira SaaS Subscription and Services Standard Terms and Conditions

These SaaS subscription and services terms (the “SaaS Terms”) are hereby incorporated into a) the Order Form and/or Statement of Work executed by the company identified as the “Subscriber” therein (“Subscriber” or “You”) and Kocho Group Limited (“Kocho”), or b) the Microsoft Azure Marketplace Offer; pursuant to which the Subscriber received the right to use SaaS and/or Professional Services subject to these SaaS Terms. By executing such SoW, Order Form, or Microsoft Azure Marketplace Offer (individually or collectively an “Order” as applicable), You agree to be bound by these SaaS Terms. These SaaS Terms will form a binding agreement between You and Kocho and govern Your current and all future Orders for the SaaS and may not be amended without the written consent of both Parties. These SaaS Terms and the Orders together form a binding agreement between Subscriber and Kocho, effective as of the Effective Date of the Order.

1. Definitions

1.1 “Administrator User” means an Authorized User who is designated by the Subscriber as an administrator for the Authorized Users with respect to the usage of the SaaS.

1.2 “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.

1.3 “Authorized Users” means individuals who are employees or contractors of Subscriber or its Affiliates and who will use the SaaS in order to perform their obligations to Subscriber or its Affiliates.

1.4 “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

1.5 “Charges” means all amounts payable by the Subscriber to Kocho pursuant to these SaaS Terms, any Order Form and/or SOW, including without limitation, Subscription Fees, Support Fees and Expenses.

1.6“Confidential Information” means non-public business information, know-how, and trade secrets in any form, including information regarding a Party’s product plans and any other information a reasonable person should understand to be confidential, which is disclosed by or on behalf of either Party or its Affiliates (“Disclosing Party”) to the other Party or its Affiliates (“Receiving Party”). Confidential Information includes these SaaS Terms, and the SaaS and Documentation, and all software and infrastructure used to provide the SaaS. “Confidential Information” excludes information that (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (b) becomes publicly known and made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (c) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records; (d) is obtained by the Receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (e) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession.

1.7 “Documentation” means operation manuals and other user manuals relating to the SaaS made available by Kocho to Subscriber.

1.8 “Entra Tenant” means a dedicated and trusted instance of Microsoft Entra ID (formerly Azure AD) provided by the Subscriber to the Authorized Users for accessing the SaaS application.

1.9 “License” means the licenses that are billed based on actual usage in the preceding month.

1.10 “Malicious Code” means software designed to (a) permit unauthorized access to and/or copying of Subscriber’s data, hardware or software; or (b) damage, delete, delay, disable, erase, interfere with, modify, shut-down or otherwise harm Subscriber’s data, hardware or software, including, but not limited to, components that are commonly referred to as “back doors,” “bots”, “drop dead devices”, “malware”, “time bombs,” “Trojan Horses,” “viruses”, and “worms”.

1.11“Order Form” means an Order Form executed by Kocho and Subscriber and includes (unless the context implies otherwise) details of subscription to SaaS by Subscriber.

1.12“Party” means either of Subscriber or Kocho individually and “Parties” means Subscriber and Kocho collectively.

1.13“Professional Services” means any consulting, implementation, configuration, and other professional services described in a Statement of Work (“SOW”) that are performed by Kocho for Subscriber related to the SaaS.

1.14 “Professional Services Fees” means the fees payable by the Subscriber to Kocho for the Professional Services, as set out in the relevant Order Form and/or SOW.

1.15“SaaS” means the cloud-based software application identified in an Order Form as made available by Kocho to Subscriber hereunder in a hosted, software-as-a-service format, and including all fixes and upgrades to the SaaS that Kocho makes available for general release at no additional charge to its subscribers.

1.16 “Services” means Professional Services and/or Support Services.

1.17“Subscriber Data” means all data, information and other content submitted by Subscriber for processing by the SaaS, and the output of the processing of such data, information and content by the SaaS.

1.18“Subscription Fees” means the subscription fees payable by the Subscriber to Kocho for the User Subscriptions, as set out in the Order Form.

1.19“Support Fees” means the fees payable by the Subscriber to Kocho for the Support Services, as set out in the Order Form and/or SOW.

1.20 “Support Services” means the technical support services for the SaaS, as described in Exhibit A to these SaaS Terms.

1.21 “Third Party Distributor”means the third party who sells the Product(s) to the Client or the Supplier (as the case may be).

1.22“User Subscription” means the user subscriptions purchased by the Subscriber pursuant to Order Form, which entitle Authorised Users to access and use the SaaS and the Documentation in accordance with these SaaS Terms.

2. The Services

2.1 Order Forms & Statements of Work.  Subscriber may order one or more subscriptions to use the SaaS pursuant to an Order Form and may engage Kocho for certain Professional Services by the execution of a separate SOW. Once executed by both Parties, each Order Form and such SOW will be a unique agreement that incorporates these SaaS Terms. If there is a conflict between these SaaS Terms and the terms of an SOW or Order Form, the terms of the Order Form or such SOW shall prevail. The Parties agree that Subscriber’s Affiliates may, as a contracting party, execute an Order Form or SOW under these SaaS Terms, in which event such Affiliate will be bound by these SaaS Terms as if such Affiliate was a Subscriber.

2.2 Access and Use of the SaaS.  Access to the SaaS will be made available to the Subscriber remotely via the Internet. The SaaS shall be deemed made available and accepted upon successful access to the login interface, unless otherwise specified in the Order Form. Subject to the Subscriber purchasing the Services in accordance with the Order Form and these SaaS Terms, the restrictions set out in Section 2.4 of these SaaS Terms, Kocho grants to Subscriber a limited, nontransferable (except in connection with the transfer of these SaaS Terms pursuant to Section 12.6 below), nonexclusive license, without the right to sublicense, to the SaaS for the term defined in the Order Form, solely for Subscriber’s internal business use by Authorized Users. Subscriber’s use rights, including the number of Authorized Users permitted to use the SaaS, are subject to any limitations on number or type that may be set forth in the Order Form. Use in excess of the number or type of Authorized Users set forth in the Order Form will be invoiced in accordance with Section 3.1 of these SaaS Terms. Kocho will use reasonable efforts to improve and enhance its offerings overall and will from time-to-time provide Upgrades to Subscriber of the SaaS as and when made generally available.

2.3 Use of the Documentation.  Subject to the Subscriber purchasing the Services in accordance with the Order Form and these SaaS Terms, the restrictions set out in Section 2.4 of these SaaS Terms, Kocho grants to Subscriber a limited, nontransferable (except in connection with the transfer of these SaaS Terms pursuant to Section 12.6 below), nonexclusive license, without right of sublicense, for the term defined in the Order Form to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Subscriber’s use of the SaaS in accordance with these SaaS Terms.

2.4 Restrictions.  Authorized User accounts cannot be used by more than one individual. Subscriber is responsible for the accuracy, quality and legality of the Subscriber Data, as well as for determining access privileges and rights for Authorized Users. Except as otherwise explicitly provided in these SaaS Terms, Subscriber will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the SaaS or Documentation, unless expressly permitted by applicable law; (b) rent, lease, or sublicense the SaaS or Documentation or otherwise provide unauthorized access thereto; (c) circumvent or disable any technological or security features or measures in the SaaS, or (d) use the SaaS: (i) to violate the rights of others; (ii) to try to gain unauthorized access to or disrupt any service, device, data, account or network; (iii) to spam or distribute malware; (iv) in a way that could harm the SaaS or impair anyone else’s use of it. Subscriber will only use the SaaS and Documentation in compliance with all applicable laws and regulations.

3. Charges and Payment Terms

3.1 The Order Form shall specify if subscriptions are to be billed on a monthly or annual basis in advance.

3.2 Other than amounts disputed in good faith, Subscriber shall pay all amounts payable by the Subscriber to Kocho under these SaaS Terms and all applicable Order Forms and SOWs, including the Subscription Fees for subscription to SaaS, Support Fees and Professional Services Fees (the “Charges”).

3.3 Travel and Expenses. Subscriber will reimburse reasonable travel and related expenses incurred by Kocho in connection with onsite visits, including direct out of pocket expenses and economy class air fares. Kocho will give Subscriber prior written notice of any travel expenses not specified in an Order Form or SOW.

3.4 Payment.  Without limiting Kocho payment rights, Subscriber will make payments directly to Microsoft (acting as a payment agent) for purchases through the Microsoft Azure Marketplace.  When purchasing directly from Kocho outside the Microsoft Azure Marketplace, (i) as a bundled Subscription model, the Subscription shall be governed by the terms and conditions contained in a separate master services agreement executed between the Subscriber and Kocho along with the corresponding Order Form and Subscriber will pay all amounts hereunder to Kocho within thirty (30) days of the date of the applicable invoice; or (ii) as a standalone Subscription model, the Subscription shall be governed by these SaaS Terms along with the Corresponding Order Form and Subscriber will pay all amounts hereunder to Kocho within thirty (30) days of the date of the applicable invoice. Only in the event of purchasing directly from Kocho outside the Microsoft Azure Marketplace, if Subscriber disputes any directly invoiced amount, Subscriber will notify Kocho in detail in writing as to the nature of the disputed charges and the reason for Subscriber’s disagreement prior to the due date of the payment, but Subscriber will pay all charges on the applicable invoice by their due date to the extent not disputed in good faith. Any undisputed amount not paid when due will be subject to finance charges equal to three percent (3%) per month above the Barclays Bank Plc’s base rate, compounded daily from the date due until the date paid. Kocho may change credit or payment terms for unfilled orders if, in Kocho’s reasonable opinion, the Subscriber´s financial condition, previous payment record, or relationship with Kocho merits such change.

3.5 Except for as otherwise set out in these SaaS Terms or mutually agreed by Kocho and Subscriber in a separate master services agreement, all payments to Kocho are non-refundable and non-cancellable. Specifically, Subscriber’s loss of business, loss of services due to non-payment, or Subscriber’s failure to use the Services will not be cause for any refund to Subscriber from Kocho.

3.6 VAT and Taxes.  The Charges confirmed in the Order Form(s) and/or SOW(s) are exclusive of VAT, or other applicable governmental taxes, duties, fees, excises, or tariffs (“Taxes”) now or hereafter imposed on the SaaS and/or Services. Subscriber shall be responsible for, and shall reimburse, Kocho for all such Taxes on any amounts payable by Subscriber hereunder, except for Taxes imposed on Kocho’s net income. If Kocho has the legal obligation to pay or collect Taxes for which Subscriber is responsible under these SaaS Terms, Kocho will add such Taxes to the amount invoiced to the Subscriber.

3.7 Annual Indexation and Change to Charges. The Charges shall be reviewed annually on each anniversary of the Subscription Start Date. The Charges may be increased by an amount equal to the percentage increase (if any) in the Consumer Price Index (CPI) published by UK Office for National Statistics for the 12-month period ending 3 months prior to such anniversary. Any such increase shall take effect from the relevant anniversary date. The Parties agree that the Charges shall not decrease in the event of a negative movement in the CPI. For avoidance with doubt, Kocho may increase Charges related to the Services in line with any increases imposed upon Kocho by Microsoft or any third-party distributor.

3.8 Compliance and Auditing. Pricing is determined by a number of factors, including User count, Order volume, customisations, Support Services, and other similar factors. Kocho may, from time to time, audit Subscriber’s account without any notice to the Subscriber to ensure compliance with agreed-upon terms and pricing. Kocho will give Subscriber at least five (5) Business Days’ notice for all other audits (unless not permitted under a relevant law or regulation) and audits should not disrupt Subscriber’s normal operations. Such audit will be at Kocho’s expense; however, if any such audit should disclose any underpayment by Subscriber, Subscriber shall immediately pay Kocho such underpaid amount, together with interest thereon at the rate for the usage discovered by Kocho, and Subscriber shall also pay Kocho for Kocho’s expenses associated with such audit.

3.9 Charges under the agreement pursuant to these SaaS Terms are based on information shared by Subscriber to Kocho. Kocho may be required to adjust the Charges as necessary in the event of any change in scope, increase in User count, Order volume, or misrepresentation of facts by Subscriber. At its discretion, Kocho reserves the right to adjust the basis and the rate of Charges, including by removing any discounts provided, provided that (a) the adjustment is as a result of Subscriber change in scope or use outside of the scope agreed; and/or (b) the adjustment affects all customers of the same Service. In the event of a change to the Charges based on misrepresentation of facts by Subscriber, Kocho reserves the right to suspend Subscriber access to the SaaS until a remedy can be found between Parties.

3.10 Future Functionality. The Subscriber acknowledges that the continued payment for SaaS and the Services does not mean that Kocho undertakes or promises to provide any future functionality or new features.

Term and Termination

4.1 Term.  The agreement between the Parties pursuant to these SaaS Terms will commence on the Subscription Start Date and will continue for the Subscription Term as set out in the Order Form and/or SOW, unless terminated earlier in accordance with these SaaS Terms. For the avoidance of doubt, the termination of these SaaS Terms shall also result in the immediate termination of any then-outstanding SOW or Order Forms and the Services thereunder, unless otherwise mutually agreed in writing by the Parties. Each Order Form and SOW will commence on the specified corresponding effective date and will terminate on the end date specified therein, unless earlier terminated in accordance with these SaaS terms.

4.2 Notice of Material Breach.  If either Party commits a material breach of these SaaS Terms or of any of its obligations under any Order Form or SOW, the other Party may give the breaching Party written notice of the breach (including a statement of the facts relating to the breach, the applicable provisions of these SaaS Terms or the applicable Order Form or SOW, and the action required to cure the breach) and its intent to terminate these SaaS Terms or the applicable Order Form or SOW pursuant to this Section 4.2.

4.3 Notice of Suspension. Without limitation, any failure by Subscriber to timely pay to Microsoft or Kocho (as applicable) any undisputed amounts when due will constitute a material breach of these SaaS Terms, and Kocho may, without limitation of any of Kocho’s other rights and remedies available, suspend performance of any or all SaaS, Professional Services and Support Services under any Order Form or SOW then in progress during any time that Subscriber is in default of such amounts owed to Kocho following ten (10) days of notice of suspension. Post expiry of the said ten (10) days of notice of suspension, if the payment still remains outstanding (in whole or part), Kocho may, in its sole discretion, terminate the agreement pursuant to these SaaS Terms immediately without any further notice.

4.4 Notice of Termination.  If a Party fails to cure any material breach specified in any notice under Section 4.2 within thirty (30) days after the date of the receipt of the written notice (or a later date as may be specified in the notice), then the non-breaching Party may terminate these SaaS Terms or the applicable Order Form or SOW with respect to which the breach or default occurred by giving the breaching Party written notice of termination.

4.5 Effects of Termination. Upon the expiration or termination of the agreement under these SaaS Terms, (i) the Subscriber shall pay all outstanding sums owing to the Supplier up to and including the date of termination; (ii) all licences granted under the Agreement will terminate immediately except for fully-paid fixed term and perpetual licences; and (iii) Kocho will provide a reasonable amount of information, cooperation and assistance to Subscriber if and as Subscriber may reasonably request such assistance at Kocho’ then-current prevailing rate card. Upon written request, Kocho will return Subscriber Data (in its then-current format and condition) at no additional fee. If not so requested by Subscriber within thirty (30) days of the effective date of termination, Kocho shall have no obligation to maintain or provide any Subscriber Data and may delete and destroy any Subscriber Data, environment, organization or any other Subscriber information or materials related to SaaS and/or the Service or provided to Kocho by the Subscriber in connection with SaaS and/or the Service. During such thirty (30) day period, Subscriber may retrieve its Subscriber Data from the SaaS, except for data that, if accessed or exported, could compromise the security or integrity of SaaS, including but not limited to password hashes or other sensitive system-level data. If an Order Form or SOW is terminated for any reason, any and all payment liabilities accrued prior to the effective date of the termination will survive. If the agreement under these SaaS Terms is terminated by Subscriber for an uncured material breach by Kocho, Kocho will refund any amounts prepaid directly to Kocho by the Subscriber for (a) Professional Services not yet provided and to be provided following the effective date of such termination, and (b) SaaS not yet provided.

4.6 Survival. The Parties’ respective rights and obligations under Sections 1,3, 4, 5, 7, 10.1-10.3, 11 and 12 of these SaaS Terms, and any and all liabilities accrued prior to the effective date of termination of the agreement under these SaaS Terms, will survive the termination of these SaaS Terms.

Proprietary Rights

5.1 Services and Documentation. Notwithstanding any other provision in these SaaS Terms, as between Subscriber and Kocho, Kocho exclusively owns all right, title and interest in and to the SaaS and Documentation and all portions thereof, as well as all improvements, enhancements, modifications, configurations, and derivative works thereto, together with all intellectual property rights therein, including all copyrights, patent and trade secret rights. Kocho reserves all rights to the SaaS and Documentation not expressly granted to Subscriber under the agreement pursuant to these SaaS Terms.

5.2 Subscriber Data. Kocho acknowledges that, as between Kocho and Subscriber, Subscriber owns all intellectual property and other proprietary rights in and to the Subscriber Data. Subject to the rights granted by Subscriber under these SaaS Terms, Kocho acquires no right, title or interest from Subscriber or Subscriber’s licensors under these SaaS Terms in or to Subscriber Data. Subscriber hereby grants to Kocho a worldwide, nonexclusive, fully paid up and non-transferable (except in connection with the transfer of these SaaS Terms pursuant to Section 12.6) license to use the Subscriber Data to perform its obligations hereunder, including the obligation to improve and enhance its offerings overall as set forth in Section 2.2. Kocho may direct a Kocho computer algorithm to “read” Subscriber Data to generally inform machine learning capabilities in the Kocho SaaS solution and may also use anonymized Subscriber Data to generate industry relevant analysis. In any such use, Subscriber Data will never be shared with third parties and Subscriber will remain anonymous and never be publicly associated with any such efforts.

5.3 Feedback. Kocho welcomes any feedback that Subscriber may provide Kocho concerning improvements to the SaaS (“Feedback”). For clarification, Feedback excludes Subscriber Data and Subscriber’s proprietary information. By providing Feedback to Kocho, Subscriber hereby grants Kocho a worldwide, fully paid-up, perpetual, irrevocable and transferable license to use the Feedback (including by incorporation of such Feedback into the SaaS).

5.4 Open-Source Software. Certain items of software embedded within the SaaS are subject to “open source” or “free software” licenses (“Open-Source Software”). Some of the Open-Source Software is owned by third parties. Nothing in these SaaS Terms limit Subscriber’s rights or obligations under the terms and conditions of any applicable end user license for the Open-Source Software. In no event do any authors of any Open-Source Software provide any warranties with respect to such Open-Source Software and such authors disclaim liability of any kind for any use of the Open-Source Software. The terms of the licenses for the Open-Source Software shall not impose any additional restrictions on Your use of the SaaS as permitted by these SaaS Terms or negate or amend any of our responsibilities with respect to the SaaS.

6. Data Security; Service Availability and Support Services

6.1 Data Security and Data Protection.  Kocho has implemented and will maintain reasonable administrative, physical and technical security measures consistent with current prevailing security practices in software-as-a-service industry and intended to protect against the loss, misuse, unauthorized access, alteration or disclosure of Subscriber Data. Such measures will include compliance with Kocho’s Data Security measures set out in Exhibit B hereto. Kocho will comply with all applicable law concerning privacy, data transfer and security.

Subscriber will notify Kocho if the European Union General Data Protection Regulation (“GDPR”) will be applicable to Subscriber’s use of the SaaS (i.e. if Subscriber will be including personal data of data subjects residing in the European Union or the UK into the SaaS). If the Parties process such personal data, the Data Protection Addendum – appended as Exhibit B hereto will apply.

Subscriber must immediately notify Kocho of any suspected security breach at [email protected], followed by contacting Subscriber’s customer relationship manager.

6.2 Malicious Code. Kocho will use measures consistent with prevailing practices in the software-as-a-service industry to screen the SaaS for the purpose of avoiding the introduction of any Malicious Code into Subscriber Data or Subscriber’s computer hardware and software systems or software. In the event Kocho introduces Malicious Code into Subscriber Data or Subscriber’s computer hardware or software systems or software, Kocho will reasonably assist Subscriber in removing such virus and/or Malicious Code at no additional charge.

6.3 Service Availability. Kocho incorporates database and system maintenance operations and processes designed to address data consistency, indexing, and integrity requirements and to help improve system performance. Kocho also uses an industry-leading hosting infrastructure to provide the SaaS and has implemented and will maintain commercially reasonable business resumption and contingency plans intended to avoid unplanned SaaS interruptions. In the event of an unplanned SaaS interruption, Administrator User of the Subscriber may contact Kocho for Support Services. Kocho will comply with the Service Levels set forth in Exhibit A to these SaaS Terms.

6.4 Data Corruption / Loss. In the event of the loss of, or corruption of, Subscriber Data stored on the SaaS being notified by the Subscriber to Kocho, Kocho shall, if so directed by the Subscriber, use all reasonable endeavours promptly to restore the Subscriber Data from the most recent available backup copy, if available. In the event of any loss or damage to the Subscriber Data, the Subscriber’s sole and exclusive remedy shall be for Kocho to use reasonable commercial endeavours to restore the Subscriber Data that is lost or damaged from the latest back-up, if any, maintained by Kocho. Kocho shall not be responsible for any loss, destruction, alteration or disclosure of the Subscriber Data caused by any third-party, other than Kocho’s sub-contractor(s).

6.5 Support Services. Kocho will provide Administrator User of the Subscriber with Support Services set forth in Exhibit A with respect to the SaaS so long as Subscriber is current in payment of the Charges. Kocho is not obligated under these SaaS Terms to provide any Support Services to any Authorized User other than the named Administrator User. End Authorized User support responsibility (if any) shall remain with You.

7. Confidentiality

7.1 Mutual Confidentiality.  The Receiving Party agrees to take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or use of the Disclosing Party’s Confidential Information and the disclosure of the Disclosing Party’s Confidential Information to third parties without the Disclosing Party’s prior written consent. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s employees or agents who reasonably need to have access to such information to perform the Receiving Party’s obligations under these SaaS Terms, and who will treat such Confidential Information under these SaaS Terms. Kocho may disclose these SaaS Terms (but not any of Subscriber’s other Confidential Information) to actual and potential investors and funding sources who agree to hold it in confidence.

7.2 Exceptions. The Receiving Party may disclose the Disclosing Party’s Confidential Information as required by applicable law or regulation or as may be required to comply with a court order compelling such disclosure; provided that, unless legally prohibited from doing so, the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and reasonable assistance in limiting disclosure or obtaining an order protecting the information from public disclosures.

7.3 Publicity. Subscriber agrees that upon request by Kocho, provided that Kocho does not otherwise disclose Subscriber’s Confidential Information, Kocho may identify Subscriber by name and logo as a customer on public facing customer lists and in other marketing collateral. Further, Kocho may issue a press release which features multiple Kocho customers, including Subscriber.

8. Representations; Warranties and Disclaimer

8.1 Mutual Representations and Warranties. Each Party represents and warrants to the other that: (a) the agreement under these SaaS Terms has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of the agreement under these SaaS Terms; and (c) the execution, delivery, and performance of the agreement under these SaaS Terms does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

8.2 Kocho Representations and Warranties.  Kocho represents and warrants to Subscriber that:
a)Kocho has sufficient right, title and interest in the SaaS to license the SaaS to Subscriber in accordance with these SaaS Terms, and that entering into and carrying out the terms and conditions of the agreement under these SaaS Terms will not violate or constitute a breach of any agreement binding upon Kocho;
b)Subscriber’s use of the SaaS in accordance with these SaaS Terms will not infringe, misappropriate or otherwise violate any third-party intellectual property or other proprietary rights;

c)the Support Services and Professional Services will be performed in a professional and workmanlike manner and will be of a grade, nature, and quality that meets prevailing standards in the software-as-a-service industry; and

d)at all times during the applicable subscription term the SaaS, as operating in a production environment, will materially conform to the Documentation.

8.3Kocho Warranty Remedies. If Kocho receives a written notice and description of a breach of the warranty for SaaS in Section 8.2(d) during the applicable subscription term, or receives a written notice and description of a breach of the warranty for Professional Services in Section 8.2(c) within sixty (60) days after performance of the non-conforming Professional Services, then Kocho will endeavour to correct such non-conformity at no additional charge. At any time, Subscriber may terminate the agreement under these SaaS Terms, the applicable Order Form or the related SOW (in whole or in part) in conformity with Section 4 of these SaaS Terms for a material breach of this warranty. Any efforts to cure the material non-conformity will be performed at no additional cost to Subscriber.

8.4 Subscriber Representations and Warranties. Subscriber represents and warrants that it has all necessary permissions, consents and authority to provide Subscriber Data and that any Subscriber Data hosted, processed, stored or used by Kocho as part of the Services will not (a) infringe or violate the Intellectual Property Rights or other legal rights of any third party; (b) be deceptive, defamatory, obscene, or unlawful; or (c) contain any viruses, worms, Malware, spyware, or other malicious computer programming codes intended to damage the platform or data. Subscriber acknowledges that any use of the Services by Subscriber or Authorised Users contrary to or in violation of the representations and warranties of Subscriber in this Section constitutes unauthorised and improper use of the Services. Any such authorised or improper use shall entitle Kocho to discontinue the Subscriber’s access to SaaS and/or the Services, without prejudice to its other rights or remedies. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data and information. The Parties acknowledge that Kocho does not and cannot review all Subscriber Data and will not be responsible for such content, but that Kocho shall have the right to delete, move, or edit any Subscriber Data that Kocho determines violates or might violate these SaaS Terms, or any applicable law or regulation, or is otherwise unacceptable.

8.5 Disclaimer.  THE SAAS, SUPPORT SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, KOCHO MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. KOCHO DOES NOT WARRANT THAT THE SUPPORT SERVICES AND/OR PROFESSIONAL SERVICES OR THE FUNCTIONS CONTAINED IN THE SAAS WILL MEET SUBSCRIBER’S REQUIREMENTS, OR THAT THE OPERATION AND RESULTS OF THE SAAS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SAAS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KOCHO OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY CONTAINED HEREIN. KOCHO MAKES NO WARRANTY REGARDING ANY THIRD-PARTY SERVICE WITH WHICH THE SAAS AND/OR SUPPORT SERVICES AND/OR PROFESSIONAL SERVICES MAY INTEROPERATE.

9. Indemnity

9.1 Kocho Indemnity. Kocho will defend and indemnify Subscriber, its employees and Affiliates from and against any and all third party claims, proceedings, or suits and all related settlements or court-awarded liabilities that arise out of or are based on a claim, that your use of the SaaS in accordance with these SaaS Terms infringes, misappropriates or violates such third party’s intellectual property rights. You will notify us promptly of any such claim, loss, liability, or demand, and in addition to the foregoing, we agree to provide you with reasonable assistance, at our expense, in defending any such claim, loss, liability, damage, or cost. Our forgoing obligations shall not extend to claims where the actual or allegedly offending SaaS would not so infringe, misappropriate or violate such third party’s intellectual property or other rights if other, non-offending data, reports, statistics or other information were used in place of the Subscriber Data.

9.2 Subscriber Indemnity. You agree to indemnify, defend and hold harmless Us, our Affiliates, officers, directors, employees, consultants, licensors, agents, and representatives from and against any and all third- party claims, losses, liabilities, damages, and/or costs (including reasonable attorney fees and costs) arising from your access to or use of SaaS or the Services, violation of these SaaS Terms, or infringement of any of our or any third-party intellectual property or other rights. We will notify you promptly of any such claim, loss, liability, or demand, and in addition to the foregoing, you agree to provide us with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.

10. Limitation of Liability

10.1 Disclaimer of Consequential Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE SAAS TERMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL OR DAMAGE TO REPUTATION ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THESE SAAS TERMS, WHETHER CAUSED BY BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE CAUSE OF ACTION, EVEN IF THE LIABLE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

10.2 Cap on Liability.  WITH THE EXCEPTION OF CHARGES DUE UNDER THE AGREEMENT UNDER THESE SAAS TERMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THE AGREEMENT UNDER THESE SAAS TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT RECEIVED BY KOCHO UNDER THE AGREEMENT UNDER THESE SAAS TERMS WITHIN THE PRECEDING 12 MONTH PERIOD (DETERMINED AS OF THE DATE OF THE EVENT GIVING RISE TO THE CLAIM).

10.3 Independent Allocations of Risk.  EACH PROVISION OF THESE SAAS TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THESE SAAS TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY KOCHO TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE SAAS TERMS. THE LIMITATIONS IN THIS SECTION 10.3 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THESE SAAS TERMS.

11. Subscriber Responsibility

11.1 You shall use the SaaS solely for Your own business purposes in accordance with these SaaS Terms and any related Order Form and SOW. Any exception to the forgoing purpose shall have to be mandatorily and expressly agreed and permitted by Kocho.

11.2 You shall be responsible for providing and maintaining Your own Microsoft Entra ID tenant and for ensuring that Authorized Users are authenticated via Your own Entra Tenant login credentials. Kocho shall have no responsibility for the configuration, security, or administration of Your Entra tenant.

11.3You are responsible for any fees incurred to access the SaaS such as Internet connection and/or data usage.

11.4You shall ensure that Your Authorised Users use the Services, SaaS and Documentation in accordance with these SaaS Terms and shall be responsible for any Authorised User’s breach of these SaaS Terms.

11.5 You shall ensure that You and any Authorised Users abide by all applicable laws and regulations in connection with the use of the Services and SaaS.

11.6 You shall ensure that You and any Authorised Users abide, do not abuse, attempt to circumvent, or violate any rules, regulations, or terms of service of any systems or software connected to the platform on which the Services and/or SaaS are provided.

11.7 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, SaaS and/or the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Kocho.

11.8 You shall not and shall ensure that any Authorized User shall not:

    • license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, operate as a service bureau or managed service, or otherwise commercially exploit or make the SaaS available to any third party;
    • modify, adapt, alter, translate or create derivative works of the SaaS;
    • reverse engineer, decompile or disassemble the SaaS (or otherwise attempt to derive the source code or underlying ideas or algorithms of the SaaS);
    • take any action that would cause the SaaS to be placed in the public domain;
    • remove, alter, or obscure any proprietary notices of Kocho, its licensors or supplier included in the SaaS;
    • use the SaaS to send or store Malicious Code or infringing, obscene, threatening, harmful, illegal, fraudulent, abusive, defamatory, libelous, or otherwise unlawful or tortious material or spam intended to damage any system or data;
    • interfere with or disrupt the integrity or performance of the SaaS or the data contained therein or other equipment or networks connected to the SaaS, or disobey any requirements made known to the Subscriber;
    • attempt to gain unauthorized access to the SaaS or its related systems or networks or collect, transmit or use information, or distribute software which covertly gathers or transmits information about a user;
    • circumvent, disable, or interfere with security-related features of the SaaS, or features that enforce limitations on use of the SaaS, or other products;
    • access the SaaS for the purpose of building a competitive product or service or copying its features or user interface;
    • send or store any personal health information (unless You and Kocho execute an SOW for the relevant Identity licenses), credit card data, personal financial data or other sensitive data (as defined under applicable data privacy laws) that may be, without limitation, subject to the Data Protection Act, or the payment card industry data security standards (PCI DSS); or
    • conduct in any manner that is likely to breach any applicable laws, codes or regulations applicable to the Parties or third parties. You acknowledge that certain Services have rate limiting in effect for the protection of the Service, and that add-on upgrades may be available for purchase if additional throughput is needed.

12. General

12.1 Independent Contractor & Subcontractors.  It is the express intention of the Parties that Kocho performs all of the Services as an independent contractor. Without limiting the generality of the foregoing, Kocho is not authorized to bind Subscriber to any liability or obligation or to represent that Kocho has any such authority. Kocho may use a subcontractor or other third party in carrying out its obligations under the agreement under these SaaS Terms; however, Kocho remains responsible for all of its obligations under the agreement under these SaaS Terms and for any breach of these SaaS Terms by any such subcontractor or other third party.

12.2 Governing Law; Venue.  These SaaS Terms will be interpreted, construed, and enforced in all respects in accordance with the laws of England and Wales, without reference to its choice of law rules. The Parties agree that any action arising out of or in connection with these SaaS Terms will be heard in the courts in London, United Kingdom, and each Party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.

12.3 Notices.  Any notice required or permitted under these SaaS Terms or required by law must be in writing and must be: (a) delivered in person or (b) sent by overnight air courier with some form of tracking mechanism, in each case properly posted and fully prepaid to the appropriate address. The initial address for notices for each Party is set forth in Section 11.10, but either Party may change its address for notices by notice to the other Party given in accordance with this Section 11.3. Notices will be deemed given at the time of actual delivery in person or one day after delivery to an overnight air courier service.

12.4 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under these SaaS Terms on account of, any delay or failure to perform as required by these SaaS Terms (other than payment of Charges) as a result of any cause or condition beyond such Party’s reasonable control (e.g. natural disaster, earthquake, flood, severe storms, , fire, explosion, war, riots, acts of terrorism (including cyber terrorism) or  civil or military authority, government action power blackout, strike, embargo, labour disputes), so long as such Party uses all commercially reasonable efforts to avoid or remove such causes of non-performance.

12.5 Waiver & Severability.  Any waiver of the provisions of these SaaS Terms or of a Party’s rights or remedies under these SaaS Terms must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of these SaaS Terms or its rights or remedies at any time, will not be construed as a waiver of the Party’s rights under these SaaS Terms and will not in any way affect the validity of the whole or any part of these SaaS Terms or prejudice the Party’s right to take subsequent action. If any term, condition, or provision in these SaaS Terms is found to be invalid, unlawful, or unenforceable to any extent, the Parties will endeavour in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in these SaaS Terms. If the Parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of these SaaS Terms, which will continue to be valid and enforceable to the fullest extent permitted by law.

12.6 Assignment.  Subscriber may not assign these SaaS Terms or otherwise transfer any right created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Kocho. Any purported assignment of these SaaS Terms, or any rights in violation of this Section will be deemed void. Kocho may assign these SaaS Terms, sub-contract or otherwise transfer any right or obligation under these SaaS Terms to a third party without the Subscriber’s prior written consent. Notwithstanding the foregoing, either Party may, upon fifteen (15) days’ prior written notice to the other Party, assign all of its rights and delegate all of its duties under these SaaS Terms to: (a) the surviving entity in a merger, sale, consolidation, or combination; or (b) an entity that acquires all or substantially all of the assigning Party’s assets.

12.7 Export Compliance.  As required by the laws of the United States and other relevant countries, Subscriber represents that it: (a) understands that the SaaS may be subject to export controls under the U.S. Commerce Department’s Export Administration Regulations (“EAR”) or export controls of other relevant countries; (b) is not located (including the Authorized Users or its Affiliates) in a prohibited destination country under the EAR or U.S. or other relevant country sanctions regulations; (c) will not export, re-export, or transfer or allow the use of the SaaS to any prohibited destination or persons or entities on the U.S. Bureau of Industry and Security Denied Parties List or Entity List, or the U.S. Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, or any similar lists maintained by other countries, without the necessary export license(s) or authorization(s); (d) will not use (including the Authorized User or its Affiliates) or transfer the SaaS in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses where prohibited by an applicable arms embargo, unless authorized by the relevant government agency by regulation or specific license; and (e) understands that countries including the United States may restrict the import, use, or export of encryption products (which may include the SaaS) and agrees that Subscriber will be solely responsible for compliance with any such import, use, or export restrictions.  Kocho will provide reasonable assistance to Subscriber in determining compliance with Section 12.7.

12.8 Business Continuity. Kocho will maintain and comply with its then-current business continuity and disaster recovery plans.

12.9 Counterparts. The agreement under these SaaS Terms may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement.

12.10Integration. These SaaS Terms and all exhibits and addenda, as well as all Order Forms and SOWs, contain the entire agreement of the Parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to said subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either Party may use in connection with the transactions contemplated by these SaaS Terms will have any effect on the rights, duties, or obligations of the Parties under, or otherwise modify, these SaaS Terms, regardless of any failure of a receiving party to object to these terms, provisions, or conditions. These SaaS Terms may not be amended, except by a writing signed by both Parties.

12.11 No Third-Party Rights. The agreement under these SaaS Terms does not confer any rights on any person or party (other than the Parties to the agreement under these SaaS Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

12.12 Address for Notice. Subscriber’s address for notice is the address mentioned in the Order Form. Kocho address for notice is as mentioned in our website at https://kocho.co.uk/contact-us/.

 

***** ***** ***** ***** ***** *****

Exhibit A

Support Services and Service Levels

1. Support Services

Kocho will provide Support Services to assist the Subscriber in their use of the SaaS Application, including troubleshooting and resolution of specific issues resulting from the use of the SaaS Application on supported platforms. Subscriber may be required to perform reasonable troubleshooting tasks and steps as recommended by Kocho for timely resolution.

Standard Support Services will include:

  • Provision of updates and upgrades (if and when available)
  • Meeting, Email and phone support for integration and setup only
  • Email support for general questions
  • Access to technical documentation
  • A dedicated Customer Support Representative

2. Hours of Support Services

Support services will be available during the following business hours:

UK: Monday – Friday, 9:00-17:00 GMT excluding bank and public holidays.

3. Incident Levels and Response Times

Severity Level  Description  Response Time  Resolution Time calculated from Response Time
Level 1 (P1) – Critical A down situation where core components of the SaaS Application are non-operational and there is no known work-around. Up to 6 hours during the hours of Support Services Within 4 hours during the hours of Support Services
Level 2 (P2) – High A major component of the SaaS Application is not functioning, and no workaround is available, but the SaaS Application still supports core functionality. Up to 8 hours during the hours of Support Services Within 1 Business Day during the hours of Support Services
Level 3 (P3) – Medium A minor component of the SaaS Application is not functioning and any other case where a feature is not operating as documented. Up to 24 hours during the hours of Support Services Within 3 Business Days during the hours of Support Services
Level 4 (P4) – Low Cosmetic issues, general questions Within 5 Business Days during the hours of Support Services
Miscellaneous A feature or function request to be added to the application. Within 5 working days during the hours of Support Services 30 business days during the hours of Support Services

To qualify for the above response and resolution times, Subscriber must cooperate with the Kocho application support team by providing sufficient information and reproducible results for errors reported.

Kocho will use commercially reasonable efforts to resolve each issue within the timeframes set out above, depending on its priority level. Resolution may consist of a permanent fix, a temporary workaround, or a clear action plan communicated to the Subscriber. Resolution times are measured from the time an issue is first acknowledged by Kocho, during above mentioned business hours of Support Services, unless otherwise agreed in writing.

In cases where resolution is delayed due to factors outside of Kocho’s control (e.g., third-party dependencies), Kocho will not be liable for such delays, but we will keep the Subscriber informed with regular status updates until the issue is resolved.

4. Uptime

Kocho will use commercially reasonable efforts to ensure that the SaaS Application achieves a Monthly Uptime Percentage of 99.9% as measured by Kocho on a quarterly basis of the Term of subscription. For this purpose, the Alira SaaS Application shall be considered “available” if the user is able to login and initiate a request using the Alira SaaS Application.

This uptime achievement is not a warranty and does not give rise to service credits, liquidated damages, or any other financial remedies, unless expressly provided for in a separate Service Level Agreement executed between Kocho and the Subscriber.

5. General Support Information and Exclusions

Technical support for the SaaS Application is provided via a variety of contact methods including email and phone during the business hours for Support Services, for current versions of the SaaS Application and during the support Term purchased by the Subscriber. Providing technical support does not obligate Kocho to make changes to the SaaS Application.

The following items are NOT supported and expressly excluded from support scope:

  • Operating systems and third-party applications
  • Alterations or revisions to the Application made by the customer or third parties.
  • Use of the SaaS Application in a manner other than as authorised in the applicable licence agreement.
  • Use of any software that has been announced as end of life
  • Continued support for issues which Kocho has provided corrections not implemented by the Subscriber or data requested from the Subscriber but not provided.
  • Free Kocho software products and tools
  • Any migration services
  • Direct configuration on the Subscriber’s Entra Tenant
  • Business to Consumer (Entra External ID) Identities
  • On premise connectors I.e. integrations directly from the SaaS Application to Active Directory
  • Custom development work unless scoped in a separate SoW

Kocho Support Service principles for the SaaS Application shall not apply due to:

  • Account suspension or termination due to Subscriber’s breach of the SaaS Terms.
  • Routine scheduled maintenance by Kocho.
  • Unscheduled, emergency maintenance or an emergency caused by factors outside Kocho’s reasonable control, including Force Majeure events and / or connectivity failures.
  • A Subscriber’s equipment, software or other technology, or third-party equipment, software or technology the Subscriber is relying on.
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