KioCloud®, brought to you by KioWare®
KioCloud User Agreement
General Terms and Conditions
KioCloud kiosk management is brought to you by KioWare®.
1. Provision of the Service
- 1.1 Service Use. Subject to this Agreement, during the License Term, Customer may: (a) use the Service, (b) use any Software provided by KioWare as part of the Service. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.
- 1.2 Service Definition. The Service includes access to the KioCloud Site's browser based Console, through which Customer may administer all of the features of the Service, as well as use of all of the features of KioCloud including its middleware and database.
- 1.3 Facilities and Data Transfer. All facilities used to store and process Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where KioWare processes and stores its own information of a similar type.
- 1.4 Accounts. Customer must have an Account to use the Service and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and for any use of its Account. If Customer becomes aware of any unauthorized use of its password, or its Account, Customer will notify KioWare as promptly as possible.
- 1.5 Changes.
- a. KioWare may make new features or functionality available from time to time through the Service, the use of which may be contingent upon Customer's agreement to additional terms.
- b. KioWare may change or remove features or functionality of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings
- c. To the Agreement. KioWare may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by KioWare, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. If Customer does not agree to the revised Agreement, please stop using the Service. KioWare will post any modification to this Agreement to the Site as well as email a notification to the Customer Operations User.
- KioWare shall retain all right, title and interest in and to the Site and the Service, including all intellectual property rights therein and thereto.
3. Interruption Of Service.
- You understand that KioWare shall take commercially reasonable efforts to make its Site and Service available. However, KioWare is not responsible for any damages or losses related to any system errors or interruptions affecting its Site or Service and the processing of any transaction related to the Service. You understand that the Site or Service may be unavailable unexpectedly as a result of circumstances beyond KioWare's control. KioWare is not responsible for technical or mechanical problems affecting your computer equipment.
4. Safety And Lifetime Of Data.
- You understand that KioWare shall take commercially reasonable efforts to ensure the safety of your data, and in addition you acknowledge your responsibility to export data at such intervals that would preclude serious consequences should the Service experience a data loss event. You understand that KioWare will permanently remove Customer data from the Service after termination.
5. Payment Terms.
- 5.1 Prepaid. The Service requires its Fees to be prepaid.
- a. If using Monthly Online Payment, Customer Operations User will receive an email notice 15 days prior to the automatic credit card transaction. If the automatic credit card transaction fails, an email will be sent to the Customer Operations User indicating the issue and notifying that the Expiration Date has passed and the Service will be terminated in 30 days and include contact information to rectify the issue.
- b. If using quarterly or annual invoicing, the Customer Operations User will receive the invoice 15 days prior to expiration date. If payment is not received by expiration date, an email to Customer Operations User will be sent indicating that unless payment is received within 30 days of expiration date, the Service will be terminated.
- 5.2 Taxes. Customer is responsible for any Taxes, and Customer will pay KioWare for the Service without any reduction for Taxes. If KioWare is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides KioWare with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states the sales tax is due on the total purchase price at the time of sale and must be invoiced and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to KioWare, Customer must provide KioWare with an official tax receipt or other appropriate documentation to support such withholding.
- 5.3 Invoice Disputes & Refunds. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of KioWare and will only be in the form of credit for the Service. Nothing in this Agreement obligates KioWare to extend credit to any party.
- 5.4 Delinquent Payments. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).
6. Suspension and Removals.
- Emergency Security Issues. Despite the foregoing, if there is an Emergency Security Issue, then KioWare may automatically suspend the Customer account. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or terminate the Emergency Security Issue. If KioWare suspends an account, for any reason, without prior notice to Customer, at Customer's request, KioWare will provide Customer the reason for the suspension as soon as is reasonably possible.
7. Intellectual Property Rights; Use of Customer Data; Feedback.
- 7.1 Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and KioWare owns all Intellectual Property Rights in the Service.
- 7.2 Use of Customer Data. KioWare may use Customer Data only to provide the Service to Customer and to help secure and improve the Service. For instance, this may include identifying and fixing problems in the Service, enhancing the Service to better protect against attacks and abuse, and making suggestions aimed at improving performance or reducing cost.
- 7.3 Customer Feedback. If Customer provides KioWare feedback or suggestions about the Service, then KioWare may use that information without obligation to Customer, and Customer hereby irrevocably assigns to KioWare all right, title, and interest in that feedback or those suggestions.
8. Technical Support.
- Subject to payment of Service Fee, KioWare will provide Technical Support to Customer during the License Term in accordance with the Technical Support Guidelines.
9. Confidential Information.
- The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use of the Service.
10. Term and Termination.
- 10.1 Agreement Term. This Agreement will remain in effect for the License Term.
- 10.2 Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, KioWare may terminate any, all, or any portion of the Service, if Customer meets any of the conditions in Section 10.2(i), (ii), and/or (iii).
- 10.3 Termination. KioWare will terminate the Service 30 days after Expiration Date. 60 days after Service Termination, the Data and Account of the Customer will be permanently deleted.
- 10.4 Termination for Convenience. Customer may stop using the Service at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the Service. KioWare may terminate this Agreement for its convenience at any time without liability to Customer. KioWare may discontinue any individual feature for any reason at any time without liability to Customer.
- 10.5 Effect of Termination. If the Agreement expires or is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees (including Taxes) owed by Customer to KioWare are immediately due upon receipt of the final electronic bill or invoice; and (iii) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
- Customer is permitted to state publicly that it is a customer of the Service, consistent with the KioWare Trademark Guidelines. KioWare may include Customer's name in a list of KioWare customers, online or in promotional materials. KioWare may also verbally reference Customer as a customer of the KioWare Service that is the subject of this Agreement.
- Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Service, as applicable.
- EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KIOWARE AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. KIOWARE AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICE. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS DATA. NEITHER KIOWARE NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICE ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
14. Limitation of Liability.
- 14.1 Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR KIOWARE'S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
- 14.2 Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR KIOWARE'S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO KIOWARE DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
- 14.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party's Intellectual Property Rights by the other party, or indemnification obligations.
- 15.1 By Customer. Unless prohibited by applicable law, Customer will defend and indemnify KioWare and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: any Customer Data or Customer Brand Features
- 15.2 By KioWare. KioWare will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) KioWare's technology used to provide the Service (excluding any open source software) or (b) any KioWare Brand Feature infringes or misappropriates the third party's patent, copyright, trade secret, or trademark.
- 15.3 Exclusions. This Section 15 will not apply to the extent the underlying Allegation arises from:
- a. the indemnified party's breach of this Agreement;
- b. modifications to the indemnifying party's technology or Brand Features by anyone other than the indemnifying party;
- c. combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party; or
- d. use of non-current or unsupported versions of the Service or Brand Features;
- 15.4 Conditions. Sections 15.1 and 15.2 will apply only to the extent:
- a. The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 15.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 15.1 or 15.2 (as applicable) will be reduced in proportion to the prejudice.
- b. The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
- 15.5 Remedies.
- a. If KioWare reasonably believes the Service might infringe a third party's Intellectual Property Rights, then KioWare may, at its sole option and expense: (a) procure the right for Customer to continue using the Service; (b) modify the Service to make them non-infringing without materially reducing their functionality; or (c) replace the Service with a non-infringing, functionally equivalent alternative.
- b. If KioWare does not believe the remedies in Section 15.5(a) are commercially reasonable, then KioWare may suspend or terminate Customer's use of the impacted Service.
- 15.6 Sole Rights and Obligations. Without affecting either party's termination rights, this Section 15 states the parties' only rights and obligations under this Agreement for Intellectual Property Rights-related Allegations and Third-Party Legal Proceedings.
16. U.S. Federal Agency Users.
- The Service was developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulation and agency supplements thereto.
- Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in York, Pennsylvania, and the judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either Customer or KioWare may seek interim or preliminary relief from a court of competent jurisdiction in York, Pennsylvania necessary to protect the rights or property of you or KioWare pending the completion of arbitration.
- 18.1 Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
- 18.2 Notices. All notices must be in writing and, for Customer, will be sent to the Operations User's email address on record, and, for KioWare, will be sent to [email protected]. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
- 18.3 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
- 18.4 Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
- 18.5 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
- 18.6 No Agency. This Agreement does not create any agency, franchise, partnership or joint venture between the parties.
- 18.7 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
- 18.8 Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
- 18.9 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
- 18.10 Equitable Relief. Nothing in this Agreement will limit either party's ability to seek Equitable Relief.
- 18.11 U.S. Governing Law.
- a. For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county or state government entity, then the Agreement will be silent regarding governing law and venue.
- b. For U.S. Federal Government Entities. If Customer is a U.S. federal government entity then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW: (I) THE LAWS OF THE STATE OF PENNSYLVANIA (EXCLUDING PENNSYLVANIA'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN YORK COUNTY, PENNSYLVANIA.
- c. For All Other Entities. If Customer is any entity not set forth in Section 18.11(a) or (b) then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE WILL BE GOVERNED BY PENNSYLVANIA LAW, EXCLUDING THAT STATE'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF YORK COUNTY, PENNSYLVANIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
- 18.12 Amendments. Except as set forth in Section 1.5(c), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
- 18.13 Survival. The following Sections will survive expiration or termination of this Agreement: 2, 7, 9, 10.5, 14, 16, 17, and 18.
- 18.14 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, KioWare may provide an updated URL in place of any URL in this Agreement.
- 18.15 Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL. If there is a confict between this Agreement and the End User Licensing Agreement (EULA) of any client side software (example: KioWare Full software), then this Agreement will supercede the EULA.
- 18.16 Definitions.
- "Account" means Customer's KioCloud account which is offered under and subject to the relevant terms of service.
- "Admin Console" means the KioCloud online console provided by KioWare to Customer for administering the Service.
- "Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
- "Allegation" means an unaffiliated third party's allegation.
- "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
- "Confidential Information" means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that the recipient already rightfully knew, that becomes public through no fault ffof the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party. Customer Data is considered Customer's Confidential Information.
- "Control" means control of greater than fifty percent of the voting rights or equity interests of a party.
- "Customer Data" means content provided, transmitted, or displayed via the Service by Customer; but excluding any data provided as part of the Account.
- "Documentation" means the KioWare documentation (as may be updated from time to time) in the form generally made available by KioWare to its customers for use with the Service.
- "Effective Date" means the date the Customer Account was created.
- "Emergency Security Issue" means either: (a) Customer's use of the Service, which could disrupt: (i) the Service; (ii) other Customers'; or (iii) the KioWare network or servers used to provide the Service; or (b) unauthorized third party access to the Service.
- "Expiration Date" means the date ending the period upon which a Service Fee has been paid.
- "Fee" means the applicable fee for the Service and any applicable Taxes. The Fee for the Service are set forth here: https://www.kiocloud.com/pricing.
- "High Risk Activities" means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Service could lead to death, personal injury, or environmental damage.
- "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
- "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
- "Legal Process" means a data disclosure request made under law, governmental regulation, court order, subpoena, warrant, governmental regulatory or agency request, or other valid legal authority, legal procedure, or similar process.
- "License Term" means the term of the Agreement, which will begin on the Effective Date and continue until the Agreement is terminated as set forth herein.
- "Service Termination" means the Customer Account will stop being accessible by remote devices and communication between KioCloud and the remote devices will cease.
- "Software" means any downloadable tools, software development kits or other such proprietary computer software provided by KioWare in connection with the Service, which may be downloaded by Customer, and any updates KioWare may make to such Software from time to time.
- "Taxes" means any duties, customs fees, or taxes (other than KioWare's income tax) associated with the purchase of the Service, including any related penalties or interest.
- "Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
- "Updates" means the periodic software updates provided by KioWare to Customer from time to time. Updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.