This agreement (“Agreement”) between you (“You” or the “Customer”) and K Factors. (the “Company” or “K Factors”, and together with the Customer, the “Parties”) governs your acquisition and use of Company’s Services specified in the Order Form (as defined below) (the “Services”).
[If you register for a free trial for the Services, the applicable provisions of this Agreement will also govern that free trial].
By accepting this agreement, either by clicking a box indicating your acceptance through an online order or by executing an order document that references this Agreement ( the online order and the documented order form, an “Order Form”), you agree to be bound by this Agreement. If you are entering into this agreement 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 terms and conditions, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Table of Contents
- Right of Use
- Proprietary Rights
- Fees and Payments
- Term and Termination
- Representations and Warranties
- Limitation on Liability
- Data Protection
- Governing Law
- No Agency
- Entire Agreement
- Amendment; Effective Date
- The Use of the Services
Subject to the terms and conditions of this Agreement and the applicable Order Form, Company will make the Services available to you. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company may monitor Customer’s use of the Services, and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Company will provide you with Company’s standard technical support pursuant to this Agreement and the applicable Order Form.
Company agrees to provide you with the Services, subject to and under the terms of this Agreement and the applicable Order Form.
You are solely responsible for any and all activities that occur under your account and ensuring that you exit or log-off from your account at the end of each session of use. You shall notify Company immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. Company shall not be responsible for any unauthorized access to, or alteration of, your data, any material, information or any transactions entered into through the Service, or any failure by you to abide by this Agreement.
- Proprietary Rights
Company owns and controls all the copyright and other intellectual property rights in the Services and the material on our Services, and in all content, trademarks, trade names, services marks and other intellectual property rights related thereto. You hereby acknowledge and agree that the company is the owner of highly valuable proprietary information. Company owns and hereby retains all proprietary rights in the Services.
You will not copy, modify, transmit, disclose, show in public, create any derivative works from, distribute, make commercial use of, or reproduce in any way any (i) Confidential Information (as defined below) or (ii) other copyrighted material, trademarks, or other proprietary information accessible via the Services, without first obtaining the prior written consent of the owner of such proprietary rights. You will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services.
You own all the copyright and other intellectual property rights in the Customer’s Data (as defined below). You grant us a royalty-free, non-exclusive, non-transferable, worldwide right to host, copy, cache, store, reproduce, perform, display, use, distribute, transmit and generally make available the Customer Data as reasonably necessary for us to provide the Services to you in accordance with this Agreement and the applicable Order Form. Subject to the limited rights granted herein, we acquire no right title or interest from you in or to any of the Customer Data.
“Confidential Information” means: (i) business or technical information, including product plans, designs, source code, marketing plans, business opportunities, personnel, research, development or know-how; and (ii) information designated by the disclosing Party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving Party; (ii) is or becomes available to the receiving Party on a non-confidential basis from a third Party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the receiving Party without use of any of disclosing Party’s Confidential Information and by persons without access to such Confidential Information.
The Parties hereby agree not to use any Confidential Information of the other Party for any purpose other than as necessary to perform its obligations under this Agreement and the applicable Order Form. During and after the Term (as defined below), neither receiving Party will disclose any Confidential Information of the disclosing Party to any third Party without the prior written consent of the disclosing Party, except as may be required by Laws (provided that the Party obligated to make the disclosure shall give the other Party advance notice of such requirement to the extent legally permitted). Each receiving Party shall be responsible for compliance with this Section and applicable provisions of this Agreement by its employees and Contractors, and shall obtain those provisions by each employee and Contractor to keep the Confidential Information of the disclosing Party confidential and to use it solely as required for the performance of the receiving Party’s obligations hereunder.
- Fees and Payments
You will pay the Company all fees specified in the applicable Order Forms. Except as otherwise specified herein or in an Order Form, payment obligations are non-cancelable and fees paid are non-refundable. Company reserves the right to change the fees or applicable charges and to institute new charges and fees at the end of the Initial Term (as defined below) or then renewal term, upon thirty (30) days prior notice to You (which may be sent by email).
Unless otherwise provided in the Order Form, payments for the Services will be made by credit card. For this purpose, You will provide us with valid and updated credit card information. In the event that You provide credit card information, You authorize us to charge such credit card for all Services listed in the Order Form at the first working day of each month, or in accordance with any different billing frequency stated in the applicable Order Form. In the event that the Order Form specifies that payment will be by a method other than a credit card, we will invoice You at the first working day of each month whereby the payment shall be made by the 7th of each calendar month. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes with respect to such information.
If any invoiced amount is not received by us by the due date, then without limiting our rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and we may charge all expenses related to the collection of such amount. Customer shall be responsible for all taxes associated with Services other taxes based on Company’s net income.
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which You are responsible under this Section, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Term and Termination
This Agreement will remain in full force and effect until expiration or termination of all Your Order Forms (the “Term”).
The term of each Order Form shall be as specified therein (“Initial Term”). Except as otherwise specified in an Order Form, each Order Form will be automatically renew for additional periods equal to the Initial Term, unless either Party gives the other notice of non-renewal at least thirty (30) days prior to the termination of the applicable Order Form.
Company in its sole discretion, may terminate your password, account or use of the Service and remove and discard any data within the Service if you breach or otherwise fail to comply with this Agreement. Upon termination of an account, your right to use such an account and the Service immediately ceases, and Company shall have no obligation to maintain any data stored in your account or to forward any data to you or any third party.
If you or Company initiate termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Fees and Payments section above. You agree that the Company may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Sections 2, 3, 4, 5, 7, 8, 10, 12, 14, 15 shall survive any termination or expiration of this Agreement.
- Representations and Warranties
The Parties hereby represents that they have validly entered into this Agreement and the applicable Order Form and has the legal power to do so.
Company warrants that during the Term, it shall use reasonable efforts to provide the Services in accordance with the terms of this Agreement and the applicable Order Form, in a manner which minimizes errors and interruptions. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-Party providers, or as of other causes beyond the Company’s reasonable control.
COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. COMPANY’S SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
Company will indemnify, defend and hold You harmless, to the extent permitted under the applicable law, from all liabilities, claims, damages, losses, costs, expenses, demands, suits and actions (including reasonable legal fees and expenses) (“Damages”), arising from a claim, suit, action or proceeding brought by a third Party against You, alleging that any Services infringes or misappropriates such third Party’s intellectual property rights (a “Claim Against You”), provided You (a) promptly give us written notice of such Claim Against You, (b) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give us all reasonable assistance, at our expense. The above defense and indemnification obligations do not apply (i) with respect to portions or components of the Services that were not supplied by Company, and/ or modified after delivery by us and/ or combined with other products, processes or materials where the alleged infringement relates to such combination, (ii) in the event that You continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, and (iii) in the event that Your use of the Services is not strictly in accordance with this Agreement and the applicable Order Form. If we receive information about an infringement or misappropriation claim related to a Services, we may in our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate (ii) obtain a license for Your continued use of that Services in accordance with this Agreement, or (iii) terminate the applicable Order Form upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated Order Form.
You will defend indemnify, defend and hold us harmless, to the extent permitted under the applicable law, from all Damages, arising from a claim, suit, action or proceeding brought by a third Party against us, alleging that any of the Customer Data infringes or misappropriation such third Party’s intellectual property rights, or arising from Your use of the Services in violation of this Agreement, Order Form or applicable law (each a “Claim Against Us”), provided we (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases us of all liability), and (c) give You all reasonable assistance, at Your expense.
This Section 7 states each Party’s entire liability to the other and each Party’s sole remedy for any third Party claim described in this Section 7.
- Limitation on Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, BUSINESS PARTNERS, LICENSORS OR SERVICES PROVIDERS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, RELIANCE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF GOODWILL, DAMAGES FOR LOSS, CORRUPTION OR BREACHES OF DATA OR PROGRAMS, SERVICES INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY FOR THE SERVICES IN THE TWELVE (12) MONTHS PRECIDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THE TERMS OF THIS AGREEMENT MUST BE FILED WITHIN TWELVE (12) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
- Data Protection
Company’s shall use the Customer Data subject to the terms and conditions of this Agreement and be used by us only in accordance with Customer’s instruction. Company shall not process Customer Data for its own purposes.
Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data in accordance of the requirements of the applicable law and regulations. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of the Customer Data by our personnel except (a) to provide the Services and prevent or address services or technical problems, (b) as compelled by law, or (c) as You expressly permit in writing.
By using the Services You hereby acknowledge Your awareness that perfect security does not exist on the internet; Company cannot and does not guarantee that the Customer Data provided to us will not become public under any circumstances.
- Governing Law
This Agreement will be deemed to have been made and entered into by and between You and the Company in the State of Colorado, USA and the laws of the State of Colorado, USA shall govern over all matters provided herein or in arising in connection hereto. Both You and the company agree to the specific jurisdiction of the Courts of Colorado, USA.
The Company may transfer and assign any of its rights and obligations under this Agreement and the applicable order form, without the other Party’s prior consent.
You may not transfer and assign any of its rights and obligations under this Agreement and the applicable order form, without the Company prior consent.
- No Agency
This Agreement does not create any agency, partnership, joint venture, employment or franchisee relationship between You and Company.
All notices given by one Party to the other shall be in writing, and shall be deemed to have been served on the other Party if handed personally, sent by registered mail, by email or facsimile. If a notice is served personally, services shall be deemed to have taken place at the time of personal services. If a notice is served by registered mail, services shall be deemed to have been served 72 hours after the time of mailing. If a notice is served by email or facsimile, services shall be deemed to have taken place at the time of the transmission, provided that the transmission can be confirmed.
- Entire Agreement
- Amendment; Effective date.
This Agreement may be modified by the Company from time to time, such modifications to be effective upon posting by the Company in this Section.
Last revised on July 15, 2020.