We may revise and update these Terms of Service from time to time in our sole discretion. Customer will be required to execute a new Service Order or other agreement acknowledging the revised Terms of Service. If Customer does not accept the changes to the Terms of Service, the unmodified Terms of Service shall continue to govern Customer’s use and access of the Services through the remainder of the then-current Service Order’s Term. Customer’s use and access of the Services will automatically terminate upon the expiration of the then-current term unless Customer accepts such new Terms of Service.
We reserve the right to withdraw or amend the Services, and any service or material we provide on the Services, in our sole discretion without notice. While we use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, we do not guarantee the Services will be available. From time to time, we may restrict access to some parts of the Services, or the entire Services, to users.
You are responsible for:
- Making all arrangements necessary for you to have access to the Services.
- Ensuring that all persons who access the Services through your internet connection are aware of these Terms of Service and comply with them.
Customer will choose a user name, password or other piece of information as part of KiteDesk’s security procedures. Customer must treat such information as confidential and must not disclose it to any other person or entity. Customer also acknowledges that Customer’s account is personal to Customer and agrees not to provide any other person with access to these Services or portions of it using Customer’s user name, password or other security information. Customer agrees to notify KiteDesk immediately of any unauthorized access to or use of Customer’s user name or password or any other breach of security. Customer also agrees to ensure that Customer exits from Customer’s account at the end of each session. Customer should use particular caution when accessing Customer’s account from a public or shared computer so that others are not able to view or record Customer’s password or other personal information.
KiteDesk has the right to disable any user name, password or other identifier, whether chosen by Customer or provided by KiteDesk, at any time in KiteDesk’s sole discretion for any or no reason, including if, in KiteDesk’s sole opinion, Customer has violated any provision of these Terms of Service.
- Term. The commencement date and term of these Terms of Service shall be as specified on the applicable Service Order for the Services unless terminated earlier as provided herein (the “Initial Term”). Upon expiration of the Initial Term, the applicable Service Order shall automatically renew for additional periods equal to the Initial Term (each a “Renewal Term”) unless either party provides notice of termination or non-renewal no less than sixty (60) days prior to expiration of the then-current term. The Initial Term and any Renewal Terms are referred to collectively as the “Term.” Notwithstanding the above, if our Terms of Service have changed during the previous Term, Customer’s access and use of the Services will only renew for additional periods upon execution a new Service Order or other agreement accepting the new Terms of Service.
- Termination for Breach. Each party shall have the right to terminate these Terms of Service or a Service Order in the event the other party breaches any provision of these Terms of Service and the other party fails to cure such breach no later than thirty (30) days after receiving written notice of default from the non-breaching party. Except for a termination by Customer for KiteDesk’s breach pursuant to this Section, in the event of an early termination of any Service Order for any other reason, Customer shall pay KiteDesk 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 number of months in the remaining Term, together with any reasonable expenses incurred by KiteDesk in setting up the Services for access and use by Customer (i.e. NRE and other setup fees) that have not been previously charged and paid by Customer.
- Termination for Bankruptcy. Either party shall have the right to terminate these Terms of Service upon written notice to the other party in the event the other party: (1) makes an assignment for the benefit of creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver, or trustee for all or a substantial part of its assets; (2) commences any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction whether now or hereafter in effect; or (3) has had any such petition or application filed or any such proceeding commenced against it in which an order for relief is entered or an adjudication or appointment is made, and which remains pending for a period of sixty (60) days or more.
- Payment Terms. Except as otherwise indicated on a Service Order, on the service activation date for each Service, KiteDesk shall bill Customer for all non-recurring and set-up fees indicated on the Service Order and the agreed upon annual minimum service charge for the first year of the Term after the completion of the free trial period, if any. Thereafter, KiteDesk will invoice Customer for all fees due for the Services according to the prices and terms listed on the applicable Service Orders. Customer shall pay the net invoice amount within thirty (30) days after the invoice date to an address designated by KiteDesk from time to time on such invoice.
- Late Payments. For any payments which are more than thirty (30) days past due, Customer shall pay a late payment fee at the lower of (i) of one and one-half percent (1.5%) per month, or (ii) the maximum legal interest rate permitted by applicable law.
- Prices. KiteDesk’s fees for the Services shall be fixed during the Initial Term. Thereafter, KiteDesk may increase such fees at any time with at least thirty (30) days prior written notice, and such increases will become effective at the beginning of the calendar month following the notice period.
- Taxes. All invoices are exclusive of all taxes, and Customer shall be responsible for those sales, value-added, withholding, and other similar taxes associated with Customer’s use of the Services, excluding taxes based on KiteDesk’s real property, personal property, net income, and personnel. In the event KiteDesk pays any such taxes owed and unpaid by Customer, KiteDesk shall invoice such amounts as separate charges on a subsequent invoice, and Customer shall reimburse KiteDesk for such taxes owed.
- Security Deposit. KiteDesk may, at any time, modify these payment terms or require a deposit or other acceptable form of security if KiteDesk reasonably deems that Customer’s ability to pay is in doubt.
- Intellectual Property Rights.
- Ownership of the Services. The Services and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by KiteDesk, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
- License. KiteDesk hereby grants Customer a non-exclusive, non-transferable, non-assignable, and revocable right to access and use the Services for Customer’s business use only.
- License Restrictions. Customer must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Services. Notwithstanding anything to the contrary, the restrictions set forth in this Section 6(c) shall not apply to Customer Content. Furthermore:
- Customer’s computer may temporarily store copies of such materials in RAM incidental to Customer’s accessing and viewing those materials.
- Customer may store files that are automatically cached by Customer’s Web browser for display enhancement purposes.
- Customer may print or download one copy of a reasonable number of pages of the Services for Customer’s own personal use and not for further reproduction, publication or distribution.
- If we provide emailing and calling functions with the Services ordered or made available for you on a trial basis, you may take such actions as are enabled by such features.
You must not:
- Modify copies of any materials from these Services or any other services provided by KiteDesk.
- Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials made available by KiteDesk through these Services or otherwise.
- Use the Services for outsourcing for others as part of a service bureau business or otherwise for the benefit of unaffiliated third parties who pay directly for its benefit.
- Disassemble, decompile, or reverse engineer the Services or any other service provided by KiteDesk, nor attempt to do same.
If Customer prints, copies, modifies, downloads or otherwise uses or provides any other person with access to any part of the Services in breach of the Terms of Service, Customer’s right to use the Services will cease immediately and Customer must, at KiteDesk’s option, return or destroy any copies of the materials Customer has made.
- Reservation of Rights. Customer acknowledges and agrees that the Services are licensed, not sold, to Customer by KiteDesk and Customer does not and will not have or acquire under or in connection with these Terms of Service any ownership interest in the Services or any related intellectual property rights. KiteDesk is and will remain the sole and exclusive owner of all right, title, and interest in and to the Services and any other products and technology offered by KiteDesk, including all intellectual property rights thereto, subject only to the limited license granted to the Customer under these Terms of Service. Unless otherwise provided in a Service Order, KiteDesk is and will remain the sole and exclusive owner of all right, title, and interest in and to any modifications and derivative works of the Services, even if such modifications and derivative works are created specifically for Customer pursuant to a Service Order. All rights not expressly granted are reserved by KiteDesk. Any use of the Services not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark, and other laws.
- Feedback. We welcome feedback regarding the Services. Any ideas, suggestions, comments, and/or other feedback Customer provides to KiteDesk (“Feedback”) shall be deemed non-confidential and KiteDesk shall have no obligation to keep any Feedback Confidential. All Feedback will automatically become the property of KiteDesk, without any compensation. KiteDesk may use all such Feedback on an unrestricted basis, and KiteDesk may freely and irrevocably use, disclose, reproduce, license, sublicense, distribute, or redistribute and otherwise commercialize the Feedback for any purpose and in any way throughout the world, without royalty. KiteDesk is under no obligation to review any Feedback.
You may use the Services only for lawful purposes and in accordance with these Terms of Service. You agree not to use the Services:
- In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries) (“Laws”). Without limiting the foregoing, it is Customer’s responsibility to comply with all Laws regarding telephone calling (including, without limitation, the Telephone Consumer Protection Act of 1991, 47 U.S.C. 227), and all Laws regarding the electronic recording or monitoring of telephone or in-person communications.
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
- To send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms of Service.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation. Customer is fully responsible to comply with all Laws related to email communications, including, without limitation, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM), the EU Directive 2002/58/EC (ePrivacy), and the Canada Anti-Spam Legislation (CASL).
- To impersonate or attempt to impersonate KiteDesk, a KiteDesk employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or usernames associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm KiteDesk or users of the Services or expose them to liability.
Additionally, you agree not to:
- Use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
- Use any robot, spider or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
- Use any manual process to monitor or copy any of the material on the Services or for any other unauthorized purpose without our prior written consent.
- Use any device, software or routine that interferes with the proper working of the Services.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services, the server on which the Services are hosted, or any server, computer or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Services.
The Services contain certain features (“Interactive Services”) that allow users to post, submit, publish, display, create, or transmit to other users or other persons within your organization (hereinafter, “post”) content and other information (collectively, “Customer Content”) on or through the Services. All Customer Content must comply with these Terms of Service.
By providing any Customer Content on the Services, you grant us and our affiliates and service providers, and each of their and our respective successors and assigns a perpetual, non-exclusive, royalty-free, fully paid-up, irrevocable license to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such Customer Content according to your account settings.
You represent and warrant that:
- You own or control all rights in and to the Customer Content and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective successors and assigns.
- All of your Customer Content does and will comply with these Terms of Service.
You understand and acknowledge that you are responsible for any Customer Content you submit or contribute, and you, not KiteDesk, have fully responsibility for such content, including its legality, integrity, reliability, accuracy, and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any Customer Content posted by you or any other user of the Services.
We have the right to:
- Remove or refuse to post any Customer Content for any or no reason in our sole discretion.
- Take any action with respect to any Customer Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Customer Content violates the Terms of Service, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public or could create liability for the KiteDesk.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
- Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms of Service.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS KITEDESK AND ITS AFFILIATES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review Customer Content before it is posted on the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
These content standards apply to any and all Customer Content. Customer Content must in its entirety comply with all applicable Laws. Without limiting the foregoing, Customer Content must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any trademark, trade secret, copyright or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
The information presented on or through the Services are made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Services, or by anyone who may be informed of any of its contents.
These Services may include content provided by third parties, including materials provided by other users, third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, other than the content provided by the KiteDesk, are solely the responsibility of the person or entity providing those materials. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
- Aggregated Data.
KiteDesk may create Aggregated Data (as defined below) for its business purposes, including for the purpose of constructing statistical models, for improving and enhancing the Services, and for analysis and guidance regarding best business practices. Customer hereby grants KiteDesk a non-exclusive, perpetual, royalty-free, fully paid-up, irrevocable license to create and use such Aggregated Data. “Aggregated Data” means Customer Content that is combined with other similar data from other customers, but does not include any information identifying the Customer or any other individual. Aggregated Data and any analysis performed therefrom may be freely disclosed by KiteDesk.
- Telecommunications and Electronic Recording Services.
The Services may permit Customer to make and electronically record telephone communications. Customer acknowledges and agrees that one or more Laws may apply to such features. Customer is and shall remain solely responsible to determine the applicability of such Laws and for any use of such features. KiteDesk cannot provide any advice regarding the permissible or impermissible use of such features and KiteDesk shall not be liable for any use of these features in violation of any Law, including for any misinterpretation, lack of understanding, or lack of knowledge regarding the use of telephone communications or electronic recordings by Customer.
- Email Services.
The Services may permit Customer’s to send and receive email to and from third parties. Customer is and shall remain solely responsible for the legality, integrity, reliability, accuracy, and appropriateness of any email sent or received through the Services. Customer agrees and acknowledges that the Services’ email features may permit Customer to send email through email servers owned, operated, and maintained by Customer or by a third party that Customer has contracted with for email services. The use of the email functionality in the Services may overburden, damage, or impair the functioning of Customer’s own email servers. In no event shall KiteDesk be liable for any such impact or adverse effects to Customer’s email servers as a result from Customer’s use of the email functionality.
- Copyright Infringement.
- We disclaim any responsibility or liability for copyrighted materials posted on our site. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below.
- Company respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), we will respond promptly to notices of alleged infringement that are reported to Company’s Designated Copyright Agent, identified below.
- Notices of Alleged Infringement for Content Made Available on the Site
- If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us a notice (“Notice”) complying with the following requirements.
- Identify the copyrighted works that you claim have been infringed.
- Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.
- Provide your mailing address, telephone number, and, if available, email address.
- Include both of the following statements in the body of the Notice:
“I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
“I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
- Provide your full legal name and your electronic or physical signature.
- Deliver this Notice, with all items completed, to our Copyright Agent:
1802 E 3rd Avenue
Tampa, FL 33605
The Services and these Terms of Service (including the applicable Service Order) consist of information related to KiteDesk’s technology, trade secrets, know-how, business operations, plans, and pricing (“Confidential Information”) and are the confidential and proprietary information of KiteDesk. Customer shall: (i) not access or use such Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with these Terms of Service; (b) not disclose or permit access to such Confidential Information to any third party; and (iii) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care.
The KiteDesk name and all related names, logos, product and service names, designs and slogans are trademarks of KiteDesk or its affiliates or licensors. You must not use such marks without the prior written permission of KiteDesk. All other names, logos, product and service names, designs and slogans on the Services are the trademarks of their respective owners.
KiteDesk may, in its sole discretion, use the names, trademarks, or service marks of Customer in its advertising, publicity, presentations, and promotions on its websites, the Services, or in other media.
- Changes to the Services.
We may update the content on the Services from time to time, but its contents is not necessarily complete or up-to-date. Any of the material on the Services may be out of date at any given time, and we are under no obligation to update such material.
The owner of the Services is based in the state of Florida in the United States. The Services (and all the software that comprises the Services) are subject to United States Export Controls. No portion of the Services may be used, downloaded, or exported (i) into (or to any resident of) Iraq, Cuba, Libya, North Korea, Iran, Syria, or any other country which the United States has embargoed goods (as such list may be revised from time to time); or (ii) anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Deny Orders. By using any of the Services, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. Although the Services may be accessible worldwide, we make no representation that materials on the Services are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal, is prohibited. Those who choose to access the Services from other locations do so at their own initiative and are responsible for compliance with all applicable Laws. Any offer for any service, and/or information made in connection with the Services is void where prohibited.
Customer understands that KiteDesk cannot and does not guarantee or warrant that any material available for downloading from the internet or the Services will be free of viruses or other destructive code. Customer is solely responsible for implementing sufficient procedures and checkpoints to satisfy Customer’s particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to KiteDesk’s site for any reconstruction of any lost data. KITEDESK WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT CUSTOMER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO CUSTOMER’S DOWNLOADING OF ANY MATERIAL POSTED ON IT.
YOUR USE OF THE SERVICES, ITS CONTENTS AND ANY FEATURES AVAILABLE THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, THEIR CONTENTS AND ANY FEATURES AVAILABLE THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER KITEDESK NOR ANY PERSON ASSOCIATED WITH KITEDESK MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER KITEDESK NOR ANYONE ASSOCIATED WITH KITEDESK REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENTS OR ANY FEATURES AVAILABLE THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR ANY FEATURES AVAILABLE THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
KITEDESK HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Except for KiteDesk’s indemnification obligations thereunder, in no event will KiteDesk, its affiliates or their licensors, service providers, employees, agents, officers or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use, the services, any content on the services, or any features available through the services, including any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
At KiteDesk’s expense as provided herein, KiteDesk agrees to defend, indemnify, and hold harmless Customer and its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees, and court costs, arising out of any claim by a third party that Customer’s authorized use of the Services infringes a third party’s patent, copyright, trademark, trade secret, or other intellectual property rights, including the payment of all amounts that a court or arbitrator finally awards or that KiteDesk agrees to in settlement of any such claim as well as any and all reasonable expenses or charges as they are incurred by Customer or any other party indemnified under this Section 23 in cooperating in the defense of any such claim. Customer agrees to (i) give KiteDesk prompt written notice of such a claim, and (ii) allow KiteDesk to control, and fully cooperate with KiteDesk in, the defense and all related negotiations. KiteDesk shall not enter into any stipulated judgement or settlement that purports to bind Customer without Customer’s express written authorizations, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, KiteDesk shall have no indemnity obligation for infringement claims arising from (i) the use of the Services in excess of the rights granted hereunder or in violation of these Terms of Service, or (ii) the use of the Services in combination with any software and/or hardware that is not approved, specified, or provided by KiteDesk, or otherwise within the reasonable contemplation of the parties given the intended use of the Services. If the Services become or are likely to become the subject of an infringement claim, then, in addition to defending the claim and paying any damages and attorneys’ fees as required above, KiteDesk shall, at its option and in its sole discretion, either (a) promptly replace or modify the Services, without loss of material functionality or performance, to make them non-infringing, (b) promptly procure for Customer the right to continue using the Services pursuant to these Terms of Service, or (c) terminate these Terms of Service and/or any applicable Service Orders and refund all prepaid and unused sums for the terminated Service Orders. Any costs associated with implementing either of the above alternatives will be borne by KiteDesk. Notwithstanding the foregoing, KiteDesk shall be relieved of its indemnification obligation only to the extent its ability to defend or settle the claim has been prejudiced as a result of late notice or lack of cooperation with respect to the claim.
- Indemnification by Customer.
At Customer’s expense as provided herein, Customer agrees to defend, indemnify, and hold harmless KiteDesk and its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, attorneys’ fees, experts’ fees, and court costs, arising out of: (a) any violation of these Terms of Service, (b) any claim by a third party that the Customer Content infringes a third party’s copyright, trademark, trade secret, or other intellectual property rights; (c) any claim that the Customer Content or Customer’s use of the Services violates any applicable Law, including, without limitation, any Law related to the privacy rights of any individual or related to electronic monitoring or recording of telephone communications, including the payment of all amounts that a court or arbitrator finally awards or that Customer agrees to in settlement of any such claim as well as any and all reasonable expenses or charges as they are incurred by KiteDesk or any other party indemnified under this Section 24 in cooperating in the defense of any such claim. KiteDesk agrees to (i) give Customer prompt written notice of a such a claim, and (ii) allow Customer to control and, and fully cooperate with, Customer in, the defense and all related negotiations. Customer shall not enter into any stipulated judgement or settlement that purports to bind KiteDesk without KiteDesk’s express written authorizations, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Customer shall be relieved of its indemnification obligation only to the extent its ability to defend or settle the claim has been prejudiced as a result of late notice or lack of cooperation with respect to the claim.
- Governing Law and Jurisdiction. All matters relating to the Services and these Terms of Service and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction). The parties agree that, to the extent permitted by law, neither the United Nations Convention on Contracts for the International Sale of Goods nor any provision of the Uniform Computer Information Transactions Act (“UCITA”) are intended to apply to these Terms of Service.
Any legal suit, action or proceeding arising out of, or related to, these Terms of Service or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida, although KiteDesk retains the right to bring any suit, action, or proceeding against Customer for breach of these Terms of Service in your country of residence or any other relevant country. Customer hereby waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
- Attorneys’ Fees. In the event that any party institutes any legal suit, action, or proceeding against the other party arising out of or relating to these Terms of Service, the substantially prevailing party shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable/actual attorneys’ fees and expenses and court costs.
- Force Majeure. If KiteDesk cannot perform any of its obligations because of any act of God, court order, fire, riot, war, or any and other causes beyond KiteDesk’s reasonable control (a “Force Majeure Event”), then KiteDesk will not be considered in breach of during the duration of the Force Majeure Event, and customer’s obligations to pay for the use and access to the Services shall be suspended.
- No waiver by KiteDesk of any term or condition set forth in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of KiteDesk to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
- If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
- KiteDesk shall have the right to assign these Terms of Service or any rights or obligations hereunder and shall promptly give Customer notice of such assignment. Customer shall not have the right to assign these Terms of Service or any rights or obligations hereunder, without KiteDesk’s prior written consent, except: (i) to any Affiliate (as defined below), (ii) any successor in interest whether by merger, reorganization, or otherwise, or (iii) any purchaser of all or more than fifty (50%) of Customer’s assets. “Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the Customer. For purposes of this definition, the term “control” means the power (or, as applicable, the possession or exercise of the power) to direct, or cause the direction of, the management, governance, or policies of a given entity, directly or indirectly, through any applicable means (whether through the legal, beneficial, or equitable ownership, of more than fifty percent (50%) of the aggregate of all voting or equity interests or securities of such entity, through partnership, or through some other form of ownership interest, by contract, or other applicable legal document, or otherwise).
- Third Party Beneficiaries. These Terms of Service are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms of Service.
- Nothing herein shall be construed to create a joint venture or partnership between the parties hereto or an employee/employer or agency relationship. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (d) when received by addressee if sent by certified or registered mail (in each case, return receipt requested, postage pre-paid). All notices sent to KiteDesk shall be sent to:
Attn: Jack Kennedy
1802 E. 3rd Avenue
Tampa, FL 33605
- Interpretation. For purposes of these Terms of Service, (i) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Terms of Service as a whole. Unless the context otherwise requires, references herein: (1) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, these Terms of Service; (2) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (3) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. These Terms of Service shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, these Terms of Service to the same extent as if they were set forth verbatim herein. In the event of any inconsistency between the statements made in the body of these Terms of Service, any applicable Service Order to which these Terms of Service have been incorporated into by reference, and any other documents incorporated or referenced by these Terms of Service by reference, the following order of precedence governs: (1) first, the Service Order, (2) second, these Terms of Service, and (3) third, any other documents incorporated herein by reference.
- Headings. The headings in these Terms of Service are for reference only and shall not affect the interpretation of these Terms of Service.
- Survival. The expiration or termination of these Terms of Service for any reason will not release either party from any liabilities or obligations set forth herein which (a) the parties have expressly agreed will survive any such expiration or termination; or (b) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination. In addition to the foregoing, upon termination or expiration of these Terms of Service, the parties’ respective obligations under Sections 6 (Intellectual Property Rights), 16 (Confidentiality), 21 (Disclaimer of Warranties), 22 (Limitation of Liability), 23 (Indemnification by KiteDesk), 24 (Indemnification by Customer), and this Section 25 (Miscellaneous) shall survive such expiration or termination.