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KiteDesk Terms of Service

KiteDesk Terms Of Service






KITEDESK, INC. (“COMPANY”)

TERMS OF SERVICE (“TOS”)

This TOS governs your access to and use of the services (the “Services”) as described in the applicable service order entered into between the parties hereto (the “Service Order”). Your access to and use of the Services is conditioned on your compliance with this TOS. By accessing or using the Services you agree to be bound by these terms:

1. The Service:

The Companywill provide to Customer the Services in accordance with this TOS and any Service Orders entered into between the parties hereto to which this TOS is attached. Such Service Orders and this TOS shall constitute the complete agreement of the parties (together they may be referred to as this “Agreement”), and supersedes all prior discussions and negotiations. In case of conflict, the terms of the Service Order shall take precedence over this TOS. Customer shall not resell the Services to a third party.

2. Service Fees:

Customer will pay all fees due for Services according to the prices and terms listed in the Service Orders. The prices listed in the Service Orders will remain firm during the Initial Term indicated in the Service Orders. At any time after the Initial Term, the Company may change any of the fees it charges Customer for any Service. Such changes in fees shall be effective at the beginning of the next month after thirty (30) days advance written notice from the Company to Customer of the change. All amounts payable hereunder to the Company will be exclusive (i.e. net) of all sales, use, value-added, withholding and other taxes and duties, which are for Customer’s account.

In the event the Company pays any such amounts (other than its own income or capital taxes) and has not collected those amounts previously from Customer, Customer shall reimburse the Company and they shall be added to the invoiced amounts as separate charges.

3. Payments:

Except as otherwise indicated on a Service Order, on the service activation date for each Service, the Company shall bill Customer for all non-recurring and set-up fees indicated in the Service Order and the agreed upon annual minimum service charge for the first year of the term after the completion of free trial, if any. Payment shall be made by Customer to the Company, net 30 days from invoice date, at an address designated by the Company from time to time. Interest shall accrue on any delinquent amounts owed by Customer to the Company at a rate equal to the lesser of i) one and one half (1.5%) per month or ii) the maximum legal interest rate chargeable per month. The Company may, at any time, modify the payment terms or require a deposit or other acceptable form of security if it reasonably deems that Customer’s ability to pay is in doubt.

4. Proprietary Rights/Confidentiality:

Company, for so long as Customer complies with this Agreement,  grants to Customer a nonexclusive, non-transferable, non-assignable, revocable right to allow access and use the Services for the period(s) specified in the Service Order or any renewal or extension thereof.  Neither party transfers to the other party any technology, software or other intellectual property rights, and all right, title and interest in and to such technology, software, or other intellectual property rights remains the sole property of the respective owner. Customer acknowledges that the Company’s technology, including related trade secrets, software code, marks and copyrights, and all intellectual property rights therein and thereto are, and shall remain, the sole and exclusive property of the Company as owner or licensee, and Customer is only receiving a limited right to use the Services. The Company shall own all modifications and derivative works, including any rights and intellectual property rights related thereto, to the Company’s Services and products and technology, regardless if any such modifications or derivative works were created for Customer pursuant to any Service Order provided hereunder, unless otherwise agreed in advance by written consent of the parties. This TOS, including the fact of its existence, all business terms of the Service Order and other documentation provided to Customer under this Service Order is confidential and proprietary to the Company (“Confidential Information”), and Customer agrees not to divulge any of the Confidential Information to third parties or make any usage of it other than as intended by Company. Company at its sole discretion may use the Customer name and logo on its website and print media for public relation and marketing purpose.

5. Restrictions in Use of Services.

Customer agrees that it is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by any user or otherwise used through Customer’s account. Customer agrees not to use or permit the use of the Services: (a) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (c) in any manner that is likely to damage, disable, overburden, or impair the Services or interfere in any way with the use or enjoyment of the Services by others; (d) to introduce any Malware or other malicious activity in Customer’s or a user’s use of the Services; (e) in violation of any U.S. denied party-list, embargoed country restriction, export law or regulation; or (f) in any way that constitutes or encourages conduct that could constitute a criminal offense.

6. Indemnification by Company:

The Company shall indemnify and hold harmless Customer from and against claims, actions, or demands brought against Customer alleging that the Services directly infringes an issued patent or other intellectual property right of a country in which the Services are actually provided to a Customer. If a Service is held to infringe and the use enjoined, Company may, at its own expense, modify such Service so that it becomes non-infringing or replace same with a non-infringing service. Company shall have no liability for any infringement of patents, copyright and other intellectual property rights resulting from Customer content, misuse of the Services, or to the extent claims arise from products and services of other third parties.

7. Indemnification by Customer.

Customer will defend Company against third party claim: (i) that any content orCustomer’s use of the Services in breach of this Agreement, infringes a registered patent, registered trademark, or copyright, or misappropriates a trade secret (to the extent that such infringement or misappropriation is not a result of Company’s actions); or (ii) relating to any content or Customer’s use of the Services in violation of Section 5 (Restrictions In Use of Services). Customer will, with respect to any such claim against Company, indemnify Company for resulting costs and damages finally awarded against Company to such third party by a court of competent jurisdiction or agreed to in settlement.

8. Indemnification Process.

The above indemnities are contingent upon (i) the indemnified party providing prompt notice of any claim of infringement and assistance in the defense thereof, (ii) the indemnifying party’s sole right to control the defense or settlement of any such claim, provided that the settlement does not require a payment or admission of liability on the part of the other party, and (iii) the indemnified party not taking any actions or failing to take actions that hinder the defense or settlement process as reasonably directed by the indemnifying party.

9. Limitation of Liability:

THE COMPANY WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES – EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED 100% OF THE MAXIMUM CUMULATIVE AMOUNT PAYABLE BY CUSTOMER FOR COMPANY’S SERVICES PURSUANT TO SERVICE ORDERS HEREUNDER.

10.Term and Termination:

a. The Initial Term of a Service order shall be as indicated on the applicable Service Order to which the TOS is attached. Thereafter, unless one party provides written notice of at least sixty days prior to the end of the Initial Term or extended term of an intention to terminate the Service Order, the Service Order shall renew for additional period(s) equal to the duration of the Initial Term.

b. Except for termination for Company’s breach which is not cured within 30 days following written notice, in the event of early termination of the Service Order by Customer for default or any other reason, Customer shall pay Company as liquidated damages and not as a penalty the annual minimum service charge owed by Customer at the time of such termination multiplied by the total number of months remaining in the Initial Term or extended term, together with any reasonable expenses incurred by Company in setting up Services for Customer (i.e. NRE and set-up fees) that were not previously charged to Customer.

c. Either party may terminate the Service Order at any time if (a) a receiver is appointed for the other party or its property, (b) the other party makes an assignment of all or substantially all of its assets for the benefit of its creditors, (c) proceedings are commenced by or for the other party under any bankruptcy, insolvency, or debtor’s relief law, (d) the other party liquidates or dissolves or attempts to do so, (e) the other party assigns or purports to assign the Service Order in breach of its provisions, or (f) the other party commits any other breach of a material obligation hereunder which it fails to cure within 20 days of written notice or immediately if it is by its nature incurable.

d. Furthermore, should Customer fail to pay any fee in a timely manner, Company shall provide written notice to Customer by email and/or fax of this fact and, if Customer fails to make the payment within seven days of delivery of the notice, Company will be entitled to suspend its Services under all applicable Service Orders.

e. Company’s failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damage or destruction of any network facilities or servers (a “force majeure event”), shall not be deemed a breach of thisAgreement. In the event that Company is not able to provide Services during a force majeure event, during this period Customer’s obligation to pay for the Services shall be suspended.

11. Disclaimer: CUSTOMER ACKNOWLEDGES THAT THE SERVICES PROVIDED BY THE COMPANY ARE PROVIDED ON AN “AS IS” BASIS AND THAT, NOTWITHSTANDING ANY OTHER ORAL OR WRITTEN COMMUNICATIONS WITH COMPANY ABOUT OR IN CONNECTION WITH ANY SUCH SERVICES, COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERRUPTION OR AVAILABILITY OF THE SERVICES, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

12. General:

a. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given when delivered in person, when received by mail, postage prepaid, registered or certified mail, return receipt requested, or when received by an internationally recognized courier service, and proof of delivery received by the noticing party. All notices to Company shall be sent to KiteDesk, Inc., Attn: Jack Kennedy, 400 N. Ashley Dr. Tampa, FL 33602, USA

b. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of Florida, USA without regard to conflicts of law principles. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be restated to reflect as nearly as possible the original intent of the Parties and the remainder of the provisions shall remain in full force and effect.

c. The parties agree that any and all disputes arising out of or relating to this Agreement that are not resolved by their mutual agreement shall be initiated only and exclusively before the courts of Florida with Florida substantive and procedural laws prevailing (except those that pertain to conflict of laws). 

d. If any legal action is necessary to enforce the terms of the Agreement, the substantially prevailing party shall be entitled to reasonable legal fees and costs.

e. Customer acknowledges that the Company, its affiliates, and third party providers own and retain all trademarks, service marks, trade names, logos, designations, copyrights and other proprietary rights in or associated with the Company, its affiliates and their third party providers, respectively, as applicable, and agrees that it will not at any time during or after the Initial Term assert or claim any interest in such proprietary rights or do anything that may adversely affect Company, its affiliates, or the third party providers (including, without limitation, any act or assistance to act which may infringe or lead to the infringement of any of the proprietary rights of the Company, its affiliates or the third party providers).

f. The Company shall have the right to assign this Agreement or any rights or obligations hereunder and shall give notice of such assignment to Customer. Customer shall not have the right to assign this Agreement or any rights or obligations hereunder, without Company’s prior written consent, except: (a) to any Affiliate, (b) any successor in interest whether by merger, reorganization or otherwise, or (iii) any purchaser of all or more than fifty percent (50%) of such party’s assets. An “Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with Customer.

g. No failure to pursue any remedy resulting from a breach of this Agreement by the non-breaching party shall be construed as a waiver of that breach by the non-breaching party or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by the non-breaching party.

h. The provisions contained in Sections 4 (only to the extent that a payment obligation arising during the term of the Agreement has not been fully paid on or before termination of the Agreement) and Section 5 through 9 of this TOS shall continue in force notwithstanding the termination of this Agreement.

i. Neither the course of conduct between the parties nor trade practice shall act to modify any provision hereunder. The terms and conditions of the Agreement, including all attachments thereto, shall prevail notwithstanding any conflicting terms and conditions of any order form or other form for order solicitation submitted by Customer to the

Company. This Agreement and any addenda or order forms accepted hereunder constitute one and the same legally binding instrument and the entire agreement between Customer and the Company, and supersede all prior oral or written agreements between the Parties with respect to the matters provided for herein. Unless otherwise provided in this Agreement, no modification, amendment or other change may be made to this Agreement or any part thereof unless reduced to writing and executed by authorized representatives of both Parties.

j. The parties agree that, to the extent permitted by law, theUnited Nations Convention on the International Sale of Goods, or similar consumer protection legislation worldwide, do not apply in any respect to the Agreement.

k. This Agreement does not create an employer-employee relationship between Company and Customer, or any agency, joint venture or partnership. Customer shall have no authority to act for or to bind Company in any way, including to warrant or to execute agreements on behalf of Company or to represent that Company is in any way responsible for the acts or omissions of Customer. Customer and Company shall be independent contractors only.

Last updated February 13, 2014



 

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