Definitions

Where this agreement states:

"Kayako", "Us" and "We" means Kayako, its employees, representatives and contractors.

"Customer", "You" and "Your" means You (an individual or single legal entity), the main account holder.

"EULA" means this End User License Agreement, the document which is available at: http://www.kayako.com/eula/

"Site" means kayako.com.

"Software" means the software the accompanies this EULA, associated tools, products, services and media delivered through the Site, content and media made available through the Site.

"Product" is a product sold by Kayako, which includes licenses to Software and services.

"Data" means the data stored in Your helpdesk using the Software.

"Third Party Software" includes any bundled third party software that is licensed by Kayako.

"Staff User Account" means a staff user account in the context of Kayako's software.

"Active Staff User Account" means a staff user account that is active in the context of Kayako's software, meaning that the Staff User Account is fully functional and can be used to authenticate to the Software.

"Domain Name" means an Internet domain name (including, for example, sub.domain.com and domain.com).

"Download License" means a type product offered by Kayako, where the Software is made available to the Customer in a downloadable, source format for installation.

"License Key" means the key which is used to enable the Software where a Customer has purchased a Download License.

"Support and Maintenance" means the optional fee-based subscription that enables a Customer to receive access to support and new Software and Software updates.

1. Acceptance of terms

1.1 EULA commencement This EULA applies and commences as soon as the You (a) purchase the Software or (b) use the Software. Either action constitutes Your acknowledgement that You have read, understood, and agree to be bound by the terms set out in the EULA. The EULA is a legal agreement between You and Kayako to use the Software. If You are entering into this EULA on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these EULA, in which case the terms "You" or "Your" shall refer to such entity and its affiliates.

1.2 Headings Headings in this document been included for convenience.

1.3 Changes and amendments Kayako changes the EULA without prior notice. Ultimately, it is the Your responsibility to obtain and revisit this EULA. Changes to the EULA will be effective immediately, and the Your continued used of the Software will constitute acceptance of those changes.

1.4 Violation If You find that You have violated the EULA, You shall take all reasonable steps to notify Us of the breach immediately. If You violate the EULA and Kayako or vendors of Third Party Software suffer any losses or damages as the result of the violation, Kayako reserves the right to bring action against You in order to recover those costs.

1.5 Enforcement The failure of Kayako to exercise or enforce any right or provision of the EULA shall not be a waiver of that right.

1.6 Changes This agreement may change from time to time, without notice. Unless otherwise stated by Kayako in writing to You, the version of this document available at this web address - http://www.kayako.com/eula/ - supersedes all others.

2. Grant of license

2.1 Backup copies of the Software You may copy Software for back-up and archival purposes, provided that the original and each copy are kept in Your possession and that Your installation and use of the Software does not exceed that allowed in the EULA.

2.2 Software use restrictions You are permitted only one live, accessible installation of the Software as well as one private installation for testing purposes that is not made available to a wider audience. Each live installation of the Software can be accessed through one Domain Name only. If access to the installation is required through multiple Domain Names, additional license(s) will need to be purchased.

2.3 Obtaining the Software You shall not obtain copies of the Software though any means other than directly through the Site using your Kayako Customer Account credentials.

2.4 Control of systems You must only install the Software and make the Software available for use on systems owned, leased or controlled by the licensee in such a way that the You can guarantee that the terms of the EULA will be upheld. You assume all responsibility for the actions of Your system providers with respect to the EULA.

2.5 Licensing of Staff User Accounts You are required to make sure that the number of Active Staff User Accounts active is equal to or less than the number of Staff User Accounts permitted by Your Software. You are responsible for ensuring that access to a Staff User Account is not shared. Only one individual should be able to authenticate to one Staff User Account. You may create as many Staff User Accounts as Your license permits.

2.6 Transfer of license Licenses granted by Kayako through the provision of the Software are non-transferable, non-exclusive and cannot be sub-licensed. You may assign this EULA and license to the Software in the event of a merger or acquisition.

2.7 Life of license Subject to the terms of the EULA, a full Download License is perpetual as long as the Software is used with a valid License Key.

2.8 Availability of the Software Kayako does not guarantee that the Software will be available for download from Kayako's servers for a period longer than 90 days following Your purchase.

2.9 No transfer of ownership The Software and entitlements to the Software and Kayako's rights are not sold and are only licensed to You under the terms outlined in the EULA. No transfer of ownership takes place.

2.10 Reservation of rights Kayako owns the title, intellectual property, trademarks and copyrights associated with the Software. Kayako reserves all rights that are not granted to the licensee by the EULA.

2.11 Access to Software updates and new releases This EULA grants Youthe license to use the latest Software release which was available at the time of Your Support and Maintenance subscription expiring.

3. Governance and international restrictions

3.1 United Nations CISG The United Nations Convention on Contracts for the Sale of Goods do not apply to this EULA.

3.2 International restrictions You are responsible for complying with any applicable laws, rules, or regulations governing the export of the Software.

4. Use of Software obligations

4.1 Negative obligations You shall not (a) reverse engineer or decrypt any portion of compiled and/or obfuscated source code, (b) give, sell, distribute, sub-license, time share, lease or lend any portion of the software (which forms part of the Services) to anyone, (c) use any Third Party Software independently of the Services, (d) copy any part of the software for use in software or applications outside of the Software, (e) make any attempt to circumvent parts of the Services designed to enforce the maximum number of Staff User Accounts for which You have paid, (f) use the Software to send unsolicited email ("spam") to anyone, including mailing lists which You have purchased. If reports of unsolicited email are received, Kayako may suspend the EULA without notice.

4.2 Positive obligations You must (a) with respect to any use of the Software, keep the attribution and hyperlink to Kayako and its website intact unless a license (at a cost) is obtained from Kayako to do so, (b) make sure that the Software in source form is not placed on a publicly accessible server. Images and executable files are excluded from this and (c) make sure that only one individual has access to a Staff User Account. Staff User Accounts and the login credentials to them must not be shared.

4.3 Responsibilities You are solely responsible for (a) keeping secure the authentication details to Your Kayako Customer Account and (b) the use of the Software, including but not limited to content and media that is created, uploaded to, downloaded from, transmitted and edited using the Software. You are responsible for any accesses made to the Software.

5. Limitation of liabilities, disclaimer of warranties and indemnification

5.1 Disclaimer of warranties The Software, including the Site and content, and all server and network components are provided on an "as is" and "as available" basis without any warranties of any kind, to the fullest extent permitted by law and Kayako expressly disclaims any and all warranties, whether express or implied, including, but not limited to, the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. You acknowledge that Kayako does not warrant that the service will be uninterrupted, timely, secure, error-free or virus-free and no information or advice obtained by You from Kayako or through the Software shall create any warranty not expressly stated in the EULA.

5.2 Limitation of liability Under no circumstances and under no legal theory (whether in contract, tort, or otherwise) shall Kayako be liable to You or any third party for any indirect, incidental, special, exemplary, consequential or punitive damages, including lost profits, lost sales or business, lost data or business interruption. In addition, Kayako shall not be liable for any direct damages, costs, losses or liabilities in excess of the monthly EULA fee paid or payable by You for the one month preceding the time of any claim for monetary damages. The provisions of this section allocate the risks under the EULA between the parties, and the parties have relied on these limitations in determining whether to enter into the EULA. Kayako's total aggregate liability to You for any claim in contract, negligence or otherwise arising out of or in connection with the provision of the EULA shall be strictly limited to the charges paid by You for the EULAs that are the subject of any claim made, the re-supply or replacement of the EULA.

5.3 Indemnification You must defend, indemnify and hold harmless Kayako from all demands, liabilities, losses, costs and claims, including reasonable legal fees asserted against Kayako, its agents, its customers, officers and employees, that may arise or result from the Software provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assignees.

5.4 Notification of claim In no event will a claim by brought by You unless You have notified Kayako of the claim within one year of it arising.

5.5 Licensee indemnification If the Software becomes the subject of an infringement on another party's copyright or intellectual property where the infringement has not arisen out of Your modification to the Software or use of the Software in combination with other products, Kayako may remedy the infringement by (a) purchasing license to the infringing part of the Software or (b) replacing the infringing part of the Software or (c) refund any fees paid by You for the Software.

5.6 Data loss Kayako shall not be held responsible for Your Data. It is Your responsibility to maintain local copies of their data and maintain proper and sufficient insurance if coverage is required with respect to data loss.

6. Trademarks, publicity and name protection

6.1 Use of names and trademarks You may use Kayako's name or logos in order to identify Yourself as a customer. You must not make use of Kayako's name or trademarks, unless written permission is obtained from Kayako or otherwise set out in the EULA.

6.2 Disrepute You must not commit any act where the result of which is the likely disrepute or harming of interests of Kayako's name or the name of its third party suppliers, whether through explicit act or omission.

6.3 Promotional materials and publicity You permit Kayako to use You in promotional materials and for publicity purposes. You can opt-out at any time by writing to: sales@kayako.com.

7. Confidentiality

7.1 Access to and disclosure of Your Data Kayako reserves the right to access any or all Your accounts in order to (a) respond to Your requests for technical support and (b) connect anonymized usage data. Kayako shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your data. Kayako will not disclose Your data except if compelled by law or if permitted by You.

7.2 Privacy policy The privacy policy is available at http://www.kayako.com/privacy/. By agreeing to the EULA, You accept the terms of Kayako's privacy policy.

8. Payments, sales and refunds

8.1 Payment of fees You must pay all fees by the due dates.

8.2 Upgrading or switching Product You are entitled to change your Product at any time, and will be billed for the difference in price. You will not receive a refund when switching down to a lower priced Product. Because the price of the Support and Maintenance subscription is a function of the cost of Your Product purchase, You will also need to pay the difference in the would-be price of the Support and Maintenance subscription in order to carry Your subscription over.

8.3 Price changes Kayako reserves the right to change prices at any time.

8.4 Credit card billing If You choose to pay by credit or debit card You authorize Kayako to debit Your account renewal fees from Your card. Kayako uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use Your billing information except to process Your credit card information for Kayako. Kayako may use Your information in order to perform fraud screening.

8.5 Refunds There is no specific refund policy. Kayako offer a 30 day evaluation account that should be used to evaluate and test the Software before purchasing. Any refunds will be made entirely at Kayako's discretion.

8.6 Refusal of sale Kayako reserves the right to refuse sale of the Software to anyone.

8.7 Support and Maintenance subscription Once purchasing the Software You are entitled to access new Software releases and updates for as long as your Support and Maintenance subscription is active. Once it has expired, you no longer have access to new Software releases and updates. The Support and Maintenance subscription is optional and You may continue to use the Software after it has expired, subject to the terms in the EULA.

9. Termination and cancellation

9.1 Cancellation You are responsible for properly cancelling Your account and to secure confirmation of account cancellation from Kayako. You will lose access to all of Your content upon cancellation and Kayako will delete it in our normal course of business operations. This information cannot be recovered once Your account is cancelled. If You cancel the Service before the end of Your current paid-up subscription period, Your cancellation will take effect immediately and You will not be charged again. You can cancel Your account by writing to Kayako at: sales@kayako.com. Kayako will process Your cancellation within 48 hours of Your notice. You may be charged in this period.

9.2 Right to terminate Kayako reserves the right to suspend or terminate the services and/or this EULA at any time. If You are a company and You go into insolvent liquidation or suffer the appointment of an administrator or administrative receiver or enter into a voluntary arrangement with Your creditors, Kayako reserve the right to suspend services and/or terminate this agreement forthwith.

9.3 Obligations of termination and cancellation Upon termination or cancellation of the EULA, You must immediately (a) remove all copies of the Software from all systems and (b) destroy all archived copies of the Software.

9.4 Failure to comply Kayako may terminate the EULA and your license to the Software if You fail to comply with the terms set out in the EULA. No refunds will be made for services suspended or terminated due to violation of this EULA.

9.5 Recovery of fees and costs Should You continue to use the Software after notice of termination has been received, You will be liable to pay all costs, including reasonable attorneys fees, to enforce Kayako's revocation of the Software, as well as any damages suffered by Kayako in the process.

9.6 Survival Clauses 1.1, 1.2, 1.4, 1.5, 2.4, 2.6, 2.7, 2.9, 2.10, 3.1, 3.2, 3.3, 5.1, 5.2, 5.3, 5.4, 5.6, 6.1, 6.3, 7.2, 8.1, 9.3, 9.4, 9.5, 9.6 of the EULA will survive termination of the EULA.