Terms and Conditions
KI Data Terms and Conditions — Updated January 2021
1. LICENSE AND SUPPORT
Subject to the terms, conditions and restrictions set forth in this Agreement, including payment of the Subscription Fees set forth in the Order Form, KI Design LLC (KID) hereby grants, and the Customer hereby accepts, a non-exclusive, non-transferable, right and license, to access and use, solely for its internal business purposes, (i) KI Data (the “Service”), on a hosted basis, in accordance with the user documentation provided with the Service (“Documentation), and (ii) the Documentation, each for the Subscription Term set forth in the applicable Order Form.
Use of the Service is restricted and subject to the limitations set forth in the Order Form. During the Subscription Term KID will support the Service in accordance with the Support and Service Level Policy attached as Appendix 2.
2. TERM; RENEWAL; TERMINATION
- Term of Agreement:This Agreement is effective as of the Effective Date and will continue until the services as described in the Order Form and any Statements of Work (“SOW(s)”) have been completed, expired or terminated.
- Term and Renewal of Orders. The Subscription Term described in each Order Form will commence upon the Order Form Effective Date and continue as set forth therein (“Initial Term”). After the Initial Term, unless stated otherwise on the Order Form, the Agreement will automatically renew for successive periods equal to the Initial Term (each a “Renewal Term” and collectively the “Term”) unless a party gives at least 90 days written notice to terminate prior to the expiration of the then-current Term. Rates for any Renewal Term will not exceed the previous year’s rates by more than five percent (5%), unless the parties agree otherwise in writing.
- Termination for Breach. This Agreement and any Service may be terminated if one party materially breaches this Agreement and fails to cure such breach within thirty (30) days of receipt of notice of the breach from the non-breaching party.
- Termination by KID. KID may terminate this Agreement immediately upon written notice to Customer in the event Customer breaches, develops, markets, sells, or offers for sale a product or service that is competitive with the Service, or is purchased by a competitor of KI Design.
3. FEES; PAYMENT TERMS; OVERDUE PAYMENTS
Subscription Fees and any other fees for professional services are specified on the Order Form. The Customer agrees to pay any pre-approved reasonable travel and living expenses incurred in connection with the provision of services under a SOW. Unless otherwise set forth on the Order Form or a SOW, all fees will be invoiced upon the Effective Date of the Order Form. Payment terms are Net 30 days from the date of receipt of invoice.
The Customer shall be responsible for all taxes on the fees, except for taxes on KI Design’s income. If any fees or charges under any Order Forms are not received from Customer by the due date, then at KI Design’s discretion, (a) such amounts 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, from the date such payment was due until the date paid; and (b) The Customer shall pay on demand all out-of-pocket costs (including attorney fees) reasonably incurred by KID to collect such fees or charges. If any amount owing by Customer under this Agreement is fifteen (15) or more days overdue, KID may, without limiting its other rights and remedies, suspend Services to the Customer until such amounts are paid in full.
4. RESTRICTIONS; OWNERSHIP; THIRD PARTY CONTENT
The Customer shall not:
(i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Service or disclose any of the foregoing;
(ii) encumber, transfer, manufacture, distribute, sell, sublicense, assign, provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use (except as expressly provided herein) the Service or Documentation;
(iii) copy, modify, adapt, translate, incorporate into or with other software, or create a derivative work of any part of the Service or Documentation;
(iv) circumvent, violate or exceed any user limits (in terms of quantities, named users or otherwise), timing, monitor or other use restrictions that are set forth in the Order Form or Documentation or that are built into the Service;
(v) use the Service for a purpose not intended by this Agreement or violate the license restrictions set forth in this Agreement, including without limitation the Order Form; or
(vi) use the Service in a manner that damages, disables, degrades the performance of or overburdens the Service for use by other customers of KI Design.
The Service is the proprietary intellectual property of KID that contains trade secrets and is protected by copyright law. Subject to any license granted hereunder, KID retains sole and exclusive ownership of all right, title, and interest in and to the Service and any other technology used to provide it. Any and all enhancements, modifications, corrections and derivative works that are made to the Service will be considered part of the Service for the purposes of this Agreement and will be owned by KID. KID shall own all rights, title and interest in any deliverables created by KID under a SOW, but all such deliverables shall be licensed to the Customer for use in connection with the Customer’s use of the Service hereunder.
3. Third Party Content:
KID licenses content (“Third Party Content”) from various Third Party providers (Third Party Providers”). The Customer agrees that it will not:
(a) use any Third Party Content (in aggregate form or otherwise) in connection with any online advertising network, advertising exchange, or data broker, (b) remove or alter any proprietary notices, copyright notices or marks from the Third Party Content, or (c) display any Third Party Content that may create a false or misleading impression as to the origin or value of such Third Party Content.
4. Customer Analysis:
Subject to KI Design’s ownership of the Service and Third Party Provider’s ownership of Third Party Content, the Customer retains all rights, title and interest in the Customer’s own analysis of information and data generated from queries employed by the Customer in its use of the Service.
KID may, without restriction, use, reproduce, copy, sell, license, distribute, publicly display or perform, incorporate into the Services, or otherwise exploit any suggestions, enhancement requests, recommendations or other feedback provided by the Customer relating to the operation of the Services.
All digital or printed copies of reports, analyses, output, and other materials or information generated or produced by the Service shall include the following attribution to KI Design: “Source: KI Design.”
The Customer agrees to (a) participate in a press release following the execution of this Agreement naming the Customer as a customer of KI Design, as well as upon successful implementation, (b) allow its name to be used in sales materials and user literature, which references KI Design’s customers generally, and (c) allow the use of its name, without endorsement, in a listing of KI Design’s other customers.
The Customer shall also make reasonable efforts to, upon KI Design’s prior reasonable request, serve as a reference account and to participate in case studies and other promotional activity.
Each party shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder), copy or use for purposes other than the performance of this Agreement, any information which relates to the other party’s business affairs, trade secrets, technology, research, development, pricing or terms of this Agreement (“Confidential Information”), and each party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure, or publication thereof.
Breach of this Section may cause irreparable harm and damage. Thus, in addition to all other remedies available at law or in equity, the disclosing party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this Section by recipient or its affiliates, employees, third party service providers or any other related party.
Confidential Information shall not include information that (a) is already known prior to the disclosure by the owning party; (b) is or becomes publicly known through no breach of this Agreement; (c) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; (d) information that is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality; or (e) the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information.
7. WARRANTIES AND DISCLAIMERS
- KID Warranties. KID represents and warrants that (i) it has the legal power to enter into this Agreement; and (ii) during the Subscription Term for which payment was received by KI Design, the functionality of the Service will not be materially decreased (other than temporary loss of functionality due to maintenance work), provided that the Customer’s exclusive remedy for a breach of such warranty shall be termination of this Agreement in accordance with Section 2.3.
- Customer Warranties. The Customer represents and warrants that (i) it has the legal power to enter into this Agreement; and (ii) it has the lawful right to store and transmit the Customer Data into the Subscription Service.
- Disclaimers. Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any warranties of merchantability, noninfringement or fitness for a particular purpose, to the maximum extent permitted by applicable law. further, ki design makes no warranties regarding any content or data provided by ki design or through the service, including without limitation the type, quantity or quality of data or content that will be made available. ki design cannot guarantee that the service will not contain objectionable content.
8. LIMITATION OF LIABILITY
The cumulative liability of ki design to the customer for all claims arising under or related to this agreement, whether in contract, tort or otherwise, shall not exceed the total amount of fees paid to ki design under the applicable order form within the year preceding the claim. notwithstanding the foregoing, in no event will ki design or its suppliers be liable to the customer or any other party for damages for loss of data, lost profits, or any indirect, special, incidental or consequential damages arising out of this agreement, even if ki design has been advised of the possibility of such damages or is negligent.
If a Third Party claims that the Subscription Service infringes any U.S. patent, copyright, or trade secret, KID will defend the Customer against such claim at KI Design’s expense and pay all damages finally awarded through judgment or settlement, provided that the Customer promptly notifies KID in writing of the claim, allows KID sole control of the defense and/or settlement, and cooperates with KID in the defense or settlement of such action.
If such a claim is made or appears possible, KID may, at its option, secure for the Customer the right to continue to use the Subscription Service, modify or replace the Subscription Service so that it is non-infringing, or, if neither of the foregoing options is available in KI Design’s reasonable opinion, terminate this Agreement and refund to the Customer any unamortized pre-paid fees for use of the Subscription Service.
KID shall have no liability or obligation hereunder with respect to any infringement claim if such infringement is caused by (i) compliance with the Customer’s instructions, designs, guidelines, plans or specifications; (ii) the Customer’s use of the Subscription Service other than as specified in the applicable Documentation; (iii) modification of the Subscription Service by any person other than as authorized in writing by KI Design; or (iv) the combination, operation or use of the Subscription Service with other products or services not supplied by KI Design, where the Subscription Service would not by itself be infringing.
This paragraph states ki design’s entire obligation to the customer with respect to any claim of infringement.
- Entire Agreement. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. If these Terms and Conditions conflict with any of the terms or conditions of any Order Form or Statement of Work, then, unless otherwise provided herein, the terms and conditions of such Order Form or Statement of Work will control solely with respect to the Services covered by such Order Form or Statement of Work. Any purchase orders issued by the Customer shall be deemed to be for the Customer’s convenience only and, notwithstanding acceptance of such orders by KI Design, shall in no way change, override, or supplement this Agreement.
- Waiver. Any waiver or modification of the provisions of this Agreement will be effective only if in writing and signed by the party against whom it is to be enforced. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver of any provision, breach, or default by either party or a party’s delay exercising its rights shall not constitute a waiver of any other provision, breach, or default.
- Independent Contractor. KI Design is an independent contractor and not an employee of the Customer. At no time shall either party make any commitments or incur any charges or expenses for or in the name of the other party, or be considered the agent, partner, joint venturer, employer, or employee of the other party.
- Notices. All notices or other communications required to be given hereunder shall be in writing and delivered either by U.S. mail, certified, return receipt requested, postage prepaid; by overnight courier; or as otherwise requested by the receiving party, to the address first listed above. Notices shall be effective upon their receipt by the party to whom they are addressed.
- Assignment. This Agreement may not be assigned by the Customer without KI Design’s prior written consent; provided, however, that the Customer may upon written notice to KI Design assign this Agreement pursuant to a merger, acquisition or sale of Customer’s business or assets provided the assignee is not a competitor of KI Design.
- Compliance with Laws. Each party will be responsible for compliance with all legal requirements related to its performance under this Agreement, including all applicable U.S. export laws and those laws related to the protection, privacy and disclosure of data and information.
- Force Majeure. Neither party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, or strikes (each a “Force Majeure Event”) provided that such party gives prompt written notice to the other party of the Force Majeure Event. The time for performance will be extended for a period equal to the duration of the Force Majeure Event.
- Non-Solicitation. Neither party shall directly or indirectly solicit, employ, or engage any employee of the other party with whom the non-employing party came into contact through the performance of this Agreement during the period such employee was engaged in the performance of this Agreement and for one (1) year after such engagement. If any court or other adjudicatory body determines that the foregoing provision is unenforceable because of its duration or scope, the court or adjudicatory body has the power to reduce the duration or scope of the provision, as the case may be, so that in its reduced form the provision is enforceable. Such power includes the authority to reform the provision by rewriting it, if required, so that it conforms to applicable law and carries out the parties’ intentions under this Agreement.
- Survival. The following provisions of this Agreement shall survive any termination or expiration hereof: Sections 3, 4 and 6 through 9.
SUBSCRIPTION SUPPORT AND SERVICE LEVEL POLICY
1. Service Levels and Credit.
KI Design’s failure to make the Service Available at least 95.5% of the time in any calendar month during the Subscription Term, excluding scheduled maintenance windows, shall be deemed a service level default (“Service Level Default”). For purposes of this SLA, “Available” means that Users are able to access and use the material features and functions of the Service.
2. Scheduled Maintenance and Notifications Standard Maintenance Windows
No more than eight hours per month, to take place during weekends or between 12:00 AM and 6:00 AM EST on weekdays.
Notification of Scheduled Maintenance Downtime
- KI Design will notify the Customer of any scheduled maintenance downtime which will cause the total scheduled maintenance downtime for the month to exceed eight hours, or which will occur outside the standard maintenance windows specified above. Except in cases of emergency, notification will be provided at least three business days prior to such downtime.
- In the case of emergency, KI Design will use commercially reasonable efforts to notify the Customer of a planned downtime as soon as practicable.
- KI Design shall, upon the Customer’s request from time to time, provide a written report regarding KI Design’s compliance with the performance requirements specified above. KID shall also provide such other information with respect to the performance of the Service as mutually agreed upon by the parties from time to time, and in conformity with reporting KID provides to its other customers utilizing the Service. The Customer may independently audit the report at their expense.
- Representatives of KI Design and the Customer shall meet as often as may be reasonably requested by either party, but no less often than once each calendar quarter, to review KI Design’s performance of Services and to discuss technical plans, system performance, service levels and for any other matters related to the Agreement that may be reasonably requested by either KID or the Customer.
4. Technical Support
KI Design provides access to technical support via email and phone by a service representative upon the following terms:
- Requests received during “Coverage Hours” (1:00 AM – 8:00 PM EST, Monday – Friday, excluding holidays) will be responded to within 4 hours.
- Requests received outside Coverage Hours will be responded to on the next business day.
In addition to the above, KID uses monitoring services to continually check on the operating status of the Service, 24 hours per day, 7 days per week. In the event that the Service is not Available, on-call staff are automatically notified of the issue via email and text message. Response time is within 15 minutes; resolution time depends on the complexity and severity of the problem.