THESE AGENCY TERMS OF SERVICE (THIS “AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU (“AGENCY”) AND Kevala Technologies, Inc. a Delaware corporation with its principal place of business at the address 218 MAIN ST #756, KIRKLAND, WA 98033 (“Kevala”) AND SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH KEVALA AGREES TO GRANT ACCESS AND USE CERTAIN KEVALA PRODUCTS AND SERVICES.
BY USING THE KEVALA PLATFORM, OR OTHERWISE ACCEPTING THE TERMS IN CONNECTION WITH YOUR INTERACTION WITH THE KEVALA PLATFORM, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “AGENCY,” “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY.
1. Access to the Kevala Platform
1.1 Service Offering. Kevala shall make available to Agency the Kevala hosted software as a service platform (referred to herein as, the “Kevala Platform” or the “Service”). If Agency purchases specific functionality or enrolls in paid programs, as specified in an applicable order for services placed with Kevala (each an “Order”) this Agency Terms of Service will also apply to that purchase. For the sake of clarity, an Order may be a signed document, but may also be a form or request for service that the Agency submits through the Kevala Platform. Use of the Kevala Platform is subject to the limitations set forth in this Agreement, on the Kevala Platform itself or in an applicable Order. From time to time and at no charge to Agency, Kevala shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement.
1.2 Restrictions and Conditions. Agency shall not, directly, indirectly or through its users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Kevala technologies, services, systems or other offerings, including data transmission, storage and backup; (d) use the Service for the purpose of developing a product or service that competes with the Kevala online products and services; (e) circumvent or disable any security features or functionality associated with Service; or (f) use the Service in any manner prohibited by law. All rights not expressly granted to Agency are reserved by Kevala, its suppliers and licensors.
2. Agency Obligations
2.1 Fees and Payment Terms. If Agency uses paid services offered by Kevala through the Kevala Platform, then Agency shall pay Kevala the amounts specified in each applicable Order (“Fees”). Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Agency’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Agency shall be solely responsible for the payment of any Sales Taxes. In the event Kevala is required to pay Sales Taxes on Agency’s behalf, Agency shall promptly reimburse Kevala for all amounts paid. If Agency provides a credit card number for charges, Kevala will charge fees as they are incurred on the Service, or may batch charges and process them as set forth on the Service. All invoiced amounts shall be paid to Kevala within thirty (30) days of receipt of an undisputed invoice. An invoice shall be deemed undisputed if, within such thirty (30) day period, Agency fails to notify Kevala in writing of any disputed amounts. Undisputed fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Kevala may upon notice, suspend access to the Service for nonpayment of undisputed fees. Amounts payable to Kevala shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Kevala.
2.2 Compliance with Laws. The Kevala Platform and its associated software are of U.S. origin. Agency shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Agency uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Agency will not upload any data or information to the Service for which Agency does not have full and unrestricted rights.
CONFIDENTIALITY. Each party agrees not to use Confidential Information provided to it by the other for any purpose other than the performance of its rights and obligations under this Agreement and shall disclose Confidential Information of the other only to: (i) their attorneys, accountants and other professional advisors; (ii) potential successors in interest to the extent required in connection with a sale or assignment; (iii) a court or judicial body of competent jurisdiction who has demanded disclosure of such Confidential Information by order, and only if the party: (a) gives prompt and detailed notice of the demand including the Confidential Information demanded and the purpose of the demand, (b) cooperates with the other party in contesting the demand, and (c) in any event, only discloses Confidential Information to the extent necessary to protect or enforce its legal rights or to defend itself; and (v) to the extent otherwise required by law. As between the parties, each party acknowledges that the disclosing party shall at all times be and remain the sole owner of its Confidential Information and the recipient of any Confidential Information shall use efforts consistent with the manner in which it protects its own Confidential Information but in no case less than commercially reasonable efforts to preserve the confidentiality of any Confidential Information of the other party. For the purpose of this agreement, “Confidential Information” means non-public information of a party disclosed by that party to the other party. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or in the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.
4. Data and Content
4.1 Ownership of Agency Data. Agency will retain all right, title and interest to the content and data provided by Agency to Kevala through its use of the Service (“Agency Data”). Agency is solely responsible for the accuracy and legality of Agency Data, posted or transmitted via Kevala’s Services, and Agency represents and warrants that it has sufficient rights to use the Agency Data in connection with the Service, and grant the license set forth below.
4.2 Submissions. By submitting data for publication on Kevala, Agency acknowledges that this data will be made available to others on the Service.
4.3 Anonymous Statistical Data. Notwithstanding anything else in this Agreement or otherwise, Kevala may monitor use of the Service and use data and information related to such use in an aggregate manner, including to compile statistical and performance information related to the provision and operation of the Service, but in each case in a manner that is anonymized and does not identify Agency or its users (“Aggregated Statistics”). Kevala may use or distribute Aggregated Statistics for any purpose, provided that such data and information is anonymized and does not identify Agency or its users.
5. Warranty/Liability/Total Liability
5.1 Mutual Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
5.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY KEVALA, ITS SUPPLIERS AND ITS LICENSORS. KEVALA SHALL NOT BE LIABLE FOR ANY ACTION OR FAILURE TO ACT BY AGENCY, ITS USERS, OR OTHERS AS A RESULT OF THE ITS USE OF THE KEVALA SERVICE.
5.3 AGENCY ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. KEVALA IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND KEVALA’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY KEVALA.
5.4 Limitation. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS OR VIOLATIONS BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S EXCLUSIVE REMEDY AND THE OTHER PARTY’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE GREATER OF ONE HUNDRED DOLLARS, OR THE AGGREGATE AMOUNTS PAID OR PAYABLE BY AGENCY HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT EITHER PARTY’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
5.5 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF THIS AGREEMENT . THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
Survival. Certain provisions contained in this Agreement, which by their terms are intended to survive the termination of this Agreement, shall survive the termination, cancellation, or completion of performance of this Agreement. These provisions include but are not limited to: Sections 3 (Confidential Information), 5 (Warranty/Liability/Total Liability), 7 (Additional Terms), 9 (General) and any payment obligations.
7. Additional Terms / Changes to Terms
Additional Terms / Changes to Terms. We may amend these Agency Terms of Service at any time by publishing revised version on our Kevala Platform and/or by sending an email to the address provided by Agency. By using the Kevala Platform after changes have been posted to these Agency Terms of Service, Agency agrees to the revised Terms. Kevala shall not be bound by any subsequent terms, conditions or other obligations included in any Agency purchase order, receipt, acceptance, confirmation or other correspondence from Agency unless expressly assented to in writing by Kevala and counter-signed by its authorized agent. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.
8. Force Majeure
Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control.
General. This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Washington State. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. Agency hereby grants permission to Kevala to allow Agency name and logo to be used in Kevala’s marketing and advertising materials and posted on Kevala’s web site. Agency may withdraw this permission by providing written notice to Kevala. This Agreement, together with its exhibits and addenda, comprises the entire agreement between Agency and Kevala regarding the subject matter contained herein. This Agreement may only be amended in writing by authorized representatives of each party.