Kardin Portal End-User License Agreement
IMPORTANT — READ CAREFULLY: This End-User License Agreement (the “Agreement”) is a legal agreement between you, as either an individual and/or as an agent of a legal entity (the “Customer”), and Kardin Systems, Inc. (“Kardin”) for a Service (the “Service”), as described below and which may be provided with this Agreement. By exercising your rights to use the Service, the Customer agrees to be bound by the terms of this Agreement. The Customer is asked to review and either accept or not accept the terms of this Agreement. If the Customer does not agree to the terms of this Agreement, you may not use the Service.
WHEREAS, Kardin is in the business of providing an online business application (the “Service”);
WHEREAS, Customer wishes to use the Service and may upload Customer Data into the Service;
NOW THEREFORE, for and in consideration of the mutual agreements and covenants hereafter set forth, the parties hereto agree as follows:
1.1. Customer Data shall mean any data, information, or other materials of any nature whatsoever, provided to Kardin by Customer in the course of implementing and/or using the Service.
1.2. Electronic Communications shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically.
1.3. Fixed License means a license that is assigned to a single user and can only be used by that person.
1.4. Floating License means a license that is available to any user set up to use a Floating License, but can only be used by one person at a time, and may also be referred to as a Concurrent License.
1.5. User means an agent of the Customer, who is assigned a License.
1.6. Term means any Initial Term and/or Renewal Term as defined in Section 5.
Kardin or its agents shall host the Service, and may update the content, functionality, and user interface of the Service from time to time in its sole discretion and in accordance with this Agreement. The Service may include, but is not limited to, websites, software products, documentation, sample files, training materials and other files.
The Service is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Therefore, you must treat the Service like any other copyrighted material. ACCESS TO THE SERVICE IS LICENSED, NOT SOLD.
3. LICENSE GRANT.
3.1. Non-Exclusive, Non-Transferable. Subject to the terms and conditions of this Agreement, Kardin grants Customer during the Term of the Agreement the non-exclusive, non-transferable (except in connection with an assignment under Section 12.1 herein) and terminable license to use the Service and to display content solely for Customer’s internal business operations, provided such operations shall not include service bureau use, outsourcing, renting, or time- sharing of the Service.
3.2. Conditions. Customer acknowledges and agrees that any rights granted to Customer are provided to Customer on the condition that Customer does not (and does not instruct or enable any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof, or otherwise attempt to discover any source code, modify the Service in any manner or form, or use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service, or for the purpose of obtaining unauthorized access to the Service.
3.3 Sublicensing Prohibited. Customer is expressly prohibited from sublicensing the use of the Service to any third parties. Customer acknowledges and agrees that Kardin shall own all rights, title, and interest in and to all intellectual property rights in the Service. Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Service, express or implied, or ownership in the Service, or any intellectual property rights thereto.
3.4. Reserved Rights. Any rights not expressly granted herein are reserved by Kardin.
4. LICENSE FROM CUSTOMER.
4.1. License of Customer Data. Subject to the terms and conditions of this Agreement, Customer grants Kardin the non-exclusive, non-transferable (except in connection with an assignment under Section 12.1 herein) license to copy, store, record, transmit, maintain, display, view, print, or otherwise use Customer Data solely to the extent necessary to maintain and provide the Service.
4.2. Survival. Customer agrees that the license to Customer Data shall survive the termination of this Agreement for one year, solely for the purpose of maintaining and providing the Service and storing backup Data.
5. LICENSE TERM, FEE AND PAYMENT.
5.1. Initial Term. The initial term of this Agreement is as provided for by the sales proposal (“Initial Term” which shall include extension thereof as provided by any subsequent agreement of the parties). Customer shall pay all agreed Fees for the Service.
5.2. Renewal Term. After the Initial Term, this Agreement shall automatically renew for successive periods (“Renewal Term”), unless Customer provides Kardin with written notice of intent not to renew the Agreement by the End Date of the Initial Term (or the end of any Renewal Term). Such notice shall be sent to email@example.com.
5.3. Fees. Kardin reserves the right to change the amounts of the Fees for any Services, features, or products at any time. Except as stated in sections 7.3 and 8.2 of this agreement, Kardin shall not refund or pro-rate the Fees paid by Customer if Customer discontinues use or abandons the Service.
5.4. Fees at Renewal. Any change in Fees affecting Customer’s use of the Service, excluding additional Data Storage fees, shall commence at the start of each Renewal Term. Kardin shall give Customer notice of any price increase at least 60 days prior to the start of the Renewal Term.
5.5. Fees for additional Services, features, or products. Any additional Services, features, or products licensed or used by the Customer during the Initial Term or any Renewal Term shall be billed at the prevailing rates.
5.6. Data Storage Fees. Any data storage beyond the amount listed in the sales proposal, or any subsequent agreement or contract then in effect, shall be billed at the prevailing rate on a monthly basis. Kardin will estimate Customer’s data storage each month and will notify Customer if they have exceeded their allocated amount.
6. TERMS OF SERVICE.
Customer acknowledges and agrees to the following terms of Service. In addition, Customer agrees that unless explicitly stated otherwise, any new features that augment or enhance the Service, and/or any new service(s) subsequently licensed by the Customer shall be subject to this Agreement.
6.1. Customer Must Have Internet Access. In order to use the Service, Customer must have or must obtain access to the World-Wide-Web, either directly or through devices that access Web based content. Customer must also provide all equipment necessary to make such (and maintain such) connection to the World-Wide-Web. Customer will use a Web Browser to access the Service. It is understood that Kardin does not provide Internet Access or Web Browser software as part of its Service.
6.2. Accuracy of Customer’s Registration Information. Customer agrees to provide accurate, current, and complete information (“Registration Data”) about Customer as prompted by the registration form, which Customer will fill out in order to gain access to the Service. Customer further agrees to use commercially reasonable efforts to maintain and promptly update the Registration Data to keep it accurate, current, and complete. Customer acknowledges and agrees that if Customer provides information that is intentionally inaccurate, not current or incomplete in a material way, or Kardin has reasonable grounds to believe that such information is untrue, inaccurate, not current or complete in a material way, Kardin has the right to suspend Customer’s account.
6.3. Email and Notices. Customer agrees to provide Kardin with Customer’s e‑mail address, to promptly provide Kardin with any changes to Customer’s e‑mail address, and to accept emails (or other electronic communications) from Kardin at the e‑mail address Customer specifies. Customer further agrees that Kardin may provide any and all notices, statements, and other communications to Customer through either e‑mail, posting on the Service (or other electronic transmission) and/or by mail or express delivery service.
6.4. Administration by Customer. Customer shall assign a unique login (email address) for each of Customer’s users of the System. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and/or logins with unauthorized Users. Customer shall be responsible for the confidentiality and use of Customer’s (including its employees’) passwords and logins.
6.5. Customer Communication. Customer shall be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically in or through the Service or under Customer’s account. Kardin may assume that any Electronic Communications it receives under Customer’s login and/or account information will have been sent by Customer.
6.6. Account Security. Customer agrees to immediately notify Kardin if Customer becomes aware of any loss or theft or unauthorized use of any of Customers passwords, logins, and/or account information. Intentional violations of this section may result in penalty fees and/or suspension of Customer’s account. If Kardin has reasonable grounds to believe that account security has been violated, Kardin shall have the right to suspend Customer’s account, at which time Kardin will notify Customer of the nature of the account security violation. Kardin shall have the right to monitor user accounts to maintain the security and integrity of the Service.
6.7. Customer’s Lawful Conduct. The Service allows Customer to send Electronic Communications directly to Kardin and to third-parties. Customer agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications, and anti-spam legislation. Customer shall not enter any information or send any Electronic Communications from the Service that is unlawful, harassing, menacing, libelous, defamatory, or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form, or by any means. Customer agrees not to access the Service by any means other than through the interfaces that are provided by Kardin.
Customer shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, or otherwise allow or make the Service available to any third party other than an authorized user, including but not limited to, creating Internet Links to the Service which include log-in information, including but not limited to, log ins, passwords, secure cookies, and/or “mirroring” or “framing” any part of the Service. Customer shall not upload, post, reproduce or distribute any Kardin information, Kardin software or other Kardin material protected by copyright or any other intellectual property right (including rights of publicity and privacy) without first obtaining Kardin’s express written permission. Customer shall not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by Kardin. Neither Customer, nor someone acting on Customer’s behalf, my use the Service to target for solicitation any Kardin customers for purposes of providing any competitive product. Customer shall ensure that any use of the Service by Customers employees (or users) is solely in accordance with the terms and conditions of this Agreement.
6.8. Third-Party Software. Customer agrees to use software produced by third-parties, including, but not limited to, “browser” software that supports a data security protocol compatible with the protocol used by Kardin. Customer agrees to use software that supports the Secure Socket Layer (SSL/TLS) protocol or other protocols accepted by Kardin and to follow logon procedures for services that support such protocols. Customer acknowledges that Kardin is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data transmitted across computer networks not owned or operated by Kardin or telecommunications facilities, including, but not limited to, the Internet.
6.9. Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to Customer’s use of the Service. Customer expressly consents to Kardin’s interception and storage of Electronic Communications and/or Customer Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Kardin. Customer acknowledges and understands that changes to Customers Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Customer agrees that Kardin shall not be held responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks not owned and/or operated by Kardin.
6.10. Links. The Service may provide, or third parties may provide, links to other World-Wide- Web sites or resources. Because Kardin has no control over such sites and resources, Customer acknowledges and agrees that Kardin is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.
6.11. Proprietary Rights. Customer acknowledges and agrees that the Service and any necessary software used in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that content or information presented to Customer through the Service or by advertisers may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
6.12. Trademark Information. Kardin and other Kardin service marks, logos and products and service names are marks of Kardin (the “Kardin Marks”). Customer agrees not to display or use the Kardin Marks in any manner without Kardin’s express prior written permission.
6.13. Confidential Information. For purposes of this Agreement, confidential information shall include the terms of this Agreement, Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Each party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations hereunder; and (c) to protect the confidentiality of all confidential information in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Kardin will restrict its employees’ access to Customer’s Confidential Information to only those employees necessary to successfully provide the Service. Kardin may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and to use it only to facilitate the performance of their services for Kardin in connection with the performance of this Agreement. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section 6.13 shall not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure. With respect to any information received by either party from the other as a result of any other relationship between the parties other than as licensor and licensee under this Agreement (i.e., business development, partnership, alliance, etc.), the parties shall abide by the terms and conditions of any Nondisclosure Agreement (or similar agreement) executed between the parties.
6.14. Provisioning Of Account. After execution of this Agreement, and subsequent to the time that Customer is provided a user name and password for the purpose of provisioning Customer’s account, Customer shall be required to agree to a “click wrap” agreement pertaining to “Terms of Service” before Customer can begin use of the Service. Kardin hereby expressly agrees that to the extent that such click wrap Terms of Service differ from the terms of this Agreement, that the verbiage of this Agreement exclusively controls the obligations of the parties.
7. SUSPENSION/TERMINATION OF SERVICE.
7.1. Suspension for Delinquent Account. Kardin reserves the right to suspend Customer’s access, use of the Service, and/or any accounts for which any payment is due but unpaid. Customer agrees that Kardin shall not be liable to Customer nor to any third party for any suspension of the Service resulting from Customer’s nonpayment of fees as described in this section.
7.2. Suspension for Ongoing Harm. Customer agrees that Kardin may suspend Customer’s access to the Service if Kardin reasonably concludes that Customer’s use of the Service is causing immediate and ongoing harm to the Service, to Kardin, or to others. In the event that Kardin suspends Customer’s access to the Service, Kardin will use commercially reasonable efforts to resolve the issues causing the suspension of Service. If Kardin is able to resolve the issues causing Harm, and providing that any such issues do not represent a breach of this agreement by Customer, then Kardin shall reinstate Customer’s use of the Service. Customer agrees that Kardin shall not be liable to Customer or to any third party for any suspension of the Service under such circumstances as described in this section.
7.3. In The Event of Breach. Either party may terminate this Agreement upon thirty (30) days written notice to the other party in the event of a breach of any provision of this Agreement by the other party, provided that, during the thirty (30) day period, the breaching party fails to cure such breach. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. lf this Agreement is terminated as a result of a breach on Kardin’s part, Kardin shall refund the pro rata portion of any fee that may have been paid by Customer for the portion of the Service not furnished to Customer. If this Agreement is terminated as a result of a breach on Customer’s part, Customer shall not be entitled to refunds of any fees or sums paid to Kardin.
7.4. Handling of Customer Data in The Event Of Termination. Customer acknowledges and agrees that following termination of Customer’s account and/or use of the Service, Kardin may immediately deactivate Customer’s account and that following a reasonable period of not less than 60 days may delete Customer’s account and related Customer Data. Customer further agrees that Kardin shall not be liable to Customer or to any third party for any termination of Customer access to the Service or deletion of Customer Data, provided that Kardin is in compliance with the terms of this section. Notwithstanding anything herein to the contrary, if requested by Customer in writing prior to the expiration of such sixty (60) day period, Kardin will provide to Customer an electronic copy of Customer Data stored by Kardin through the Service at the time of termination. Customer shall be responsible for providing or prepaying to Kardin the cost of all storage media used to make such copy.
7.5. Insolvency. Subject to applicable law, either party may terminate this Agreement by written notice to the other and may regard the other party as in default of this Agreement, if the other party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, suffers or permits the appointment of a receiver for its business or assets, or becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise. In the event that any of the above events occurs, that party shall immediately notify the other party of its occurrence.
8. MAINTENANCE, MODIFICATION TO, OR DISCONTINUATION OF THE SERVICE.
8.1. Service Interruptions. Customer recognizes that from time-to-time the Service may not be accessible due to maintenance, updates, upgrades, or other interruption of the Service. Customer agrees to hold Kardin harmless for any damages that arise from such an occurrence. Kardin will make commercially reasonable efforts to minimize or eliminate any interruption to the Service.
8.2. Modifications to the Service. Kardin reserves the right at any time and from time to time to enhance, modify, temporarily or permanently, the Service (or any part thereof). Access to new features or enhancements may require additional fees, licensing, or subscriptions. In the event that Kardin modifies the Service in a manner which removes or disables a feature or functionality on which Customer materially relies, Kardin, at Customer’s written request, shall use commercially reasonable efforts to substantially restore such functionality to Customer. In the event that Kardin is unable to substantially restore such functionality, Customer shall have the right to terminate the Agreement and receive a pro-rata refund of the license fees paid under the Agreement for use of the Service which was paid for by Customer but not yet furnished by Kardin as of the date of such termination.
8.3. Discontinuation of Service. Customer acknowledges that Kardin reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Customer agrees that Kardin shall not be liable to Customer or to any third party for any modification or discontinuation of the Service as described in this section.
9. NO WARRANTIES.
Kardin expressly disclaims any warranty for the Service. The Service and any related documentation or support is provided “AS IS” without warranty of any kind, either express or implied, including, without limitation, the implied warranties or merchantability, fitness for a particular purpose, non-infringement, quality, conformity with specifications, reliability or functionality. The entire risk arising out of the use, performance, or nonperformance of the Service remains with Customer. KARDIN MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE LICENSED SOFTWARE, THE SERVICE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
10. LIMITATIONS OF LIABILITY.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH KARDIN IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY KARDIN OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES FROM USING THE SERVICE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, OR NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. The maximum liability of either party to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, tort, or otherwise, shall in no case exceed the equivalent of 12 months in license fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of consideration levied in connection with the license of the Service and that, were Kardin to assume any further liability other than as set forth herein; such consideration would of necessity be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
11. DATA SHARING, CONTROL OF DATA.
11.1. Third-Party Data Sharing. In the event Customer grants access to or otherwise shares Customer’s Data with a third-party who is an Authorized Service User, Customer shall hold Kardin harmless for any changes to Customer’s Data by the third-party.
11.2. Customer Use of Third-Party Data Records. Customer may be granted third-party access to certain Data Records within the Data of another Customer. At any time, that third-party may choose to discontinue Customer’s access to the shared Data. Customer shall hold Kardin harmless for any liability due to loss of such access.
12. GENERAL PROVISIONS.
12.1. Successors and Assigns. This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but neither party may assign this Agreement without written consent of the other, except such consent is not required to the successor of all or substantially all of the assignor’s business or assets. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although Kardin reserves the right to identify Customer by name as a user of the Service.
12.2. Entire Agreement, Modification. This Agreement (and any Exhibits hereto) represents the entire agreement of the parties and supersedes all prior discussions and/or agreements between the parties and is intended to be the final expression of their Agreement. It shall not be modified or amended except in writing signed by both parties.
12.3. Governing Law and Venue. This Agreement shall be governed in accordance with the laws of the State of Washington and any controlling U.S. Federal Law. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement (or the Service) shall be settled exclusively by arbitration, conducted before a panel of three (3) arbitrators in King County, Washington, in accordance with the rules of the American Arbitration Association then in effect. The arbitrators shall not have the authority to add to, detract from, or modify any provision hereof nor to award punitive damages to any injured party. A decision by a majority of the arbitration panel shall be final and binding. Judgment may be entered on the arbitrators’ award in any court having jurisdiction. The prevailing party shall be entitled to receive reimbursement from the other party for all of its reasonable attorney’s fees and costs. If any provision is held by arbitration to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorney’s fees and/or costs.
12.4. Force Majeure Event. Neither party shall be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, rioting, protests, labor stoppage, data center failure, war or military hostilities, criminal acts of third parties or hackers, computer viruses or worms. Any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any force majeure event.
12.5. Survival. Sections 4, 7.4, 10, and 12 shall survive the termination or expiration of this Agreement.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS, AND THE PERSON SIGNING IN WRITTEN FORM OR AGREEING ELECTRONICALLY IS AN AUTHORIZED USER.
Kardin Systems, Inc.
35030 SE Douglas Street • Suite 205
Snoqualmie, WA 98065–9266