Last Updated: April 2022
Please read these Terms of Service carefully because they govern your use of Kontakt.io Inc.’s (“Kontakt.io”) products and services. Customer, together with Kontakt.io, may be referred to individually as a “Party” and together as the “Parties”.
By clicking a box indicating your acceptance of these Terms, by executing an Order Form or other contract that references these Terms, by purchasing Products or otherwise entering into an Order Form or other contract with Kontakt.io, a Kontakt.io reseller, or any other entity or individual for the purchase of Products or under which Products are made available to you, or by otherwise accessing and/or using the Products, whichever is the earlier, you accept and agree to be bound by these Terms. If you do not agree to these Terms or you are not authorized to access and/or use the Products, you will not access or use the Products.
If you are accessing and/or using the Products on behalf of a company (such as your employer) or other legal entity that is our Customer, you agree to these Terms on behalf of such company or other legal entity, and you represent and warrant that you have the authority to bind such company or other legal entity to these Terms. If you have entered into a separate written contract with Kontakt.io with respect to your purchase of Products or under which Products are made available to you, to the extent there is a conflict between such separate written contract with Kontakt.io and these Terms, such separate contract with Kontakt.io will prevail.
1.1 “Affiliates” means any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, Customer.
1.2 “Mobile Apps” means software applications for smartphones and tablets made available by Kontakt.io.
1.3 “Authorized User” means Customer’s employees and/or contractors whom Customer authorizes to use the Kontakt.io Software on its behalf.
1.4 "Beta Offerings” means any Kontakt.io hardware and/or software offerings and related documentation, features and accessories made available to Customer prior to general release (as determined by Kontakt.io in its sole discretion). Beta Offerings may, but are not required to be, labeled as “beta,” “preview,” “testing,” “for non-production use only,” “prototype” or any similar term.
1.5 “Customer” or “you” means the company or legal entity for which you are accepting these Terms, and Affiliates of that company or entity.
1.6 “Customer Account” means the accounts Customer creates through the Hosted Software to access Customer Data.
1.7 “Customer Data” means (i) data collected or generated by Customer’s use of the Hardware, (ii) data submitted by or on behalf of Customer into any App or Hosted Software, and (iii) any analyses, insights and reports generated by Customer’s use of the Products to the extent containing such data described in the foregoing clauses (i) or (ii).
1.8 “Documentation” means any documentation describing the Products made available to Customer through the Kontakt.io website or otherwise made available to Customer by Kontakt.io from time-to-time.
1.9 “Firmware” means software embedded in or installed on the Hardware.
1.10 “Hardware” means the Kontakt.io hardware devices such as gateways, portal beams, sensors, controllers, beacons, badges, tags, and accessories, that Customer has purchased, obtained, or otherwise acquired via an Order Form.
1.11 “Hosted Software” means Kontakt.io’s web-based software platform, including the interface accessed online at cloud.kontakt.io, and as may be described further in any applicable Order Form.
1.12 “Kontakt.io Software” means the Apps, Firmware, and Hosted Software, and any improvements, modifications, patches, updates, and upgrades thereto that Kontakt.io or its agents develop or provide in connection with these Terms, and Support Services.
1.13 “Kontakt.io Software Systems” means the Kontakt.io Software and any networks, systems, products, services, or data of Kontakt.io, its providers, its partners, its customers, or any other third party, integrated with or connected to such Kontakt.io Software.
1.14 "License Expiration Date" means the later of (i) the license termination date set forth in the applicable Order Form or other written agreement you entered into for the purchase of Products or under which Products are made available to you ("Initial Term"), and (ii) if applicable to such contract the end of the then-active Renewal Term (as defined below).
1.15 “Malicious Code” means code, files, scripts, agents, software or programs intended to do harm or allow for unauthorized access, including, for example, viruses, worms, time bombs, and Trojan horses.
1.16 “Order Form” means a (i) mutually executed written or electronic order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Kontakt.io in writing; or (iii) quote issued by Kontakt.io and accepted by Customer, in each case which sets forth the applicable Products ordered by Customer.
1.17 “Products” means the Hardware and Services.
1.18 “Professional Services” means the training, implementation, or other professional services provided by Kontakt.io to Customer (i) as purchased separately by Customer pursuant to an Order Form, (ii) in Kontakt.io’s sole discretion, or (iii) as otherwise mutually agreed in writing between the Parties.
1.19 “Service Level Agreement” means the service level agreement for Hosted Software set forth below as Appendix 1 to these Terms.
1.20 “Services” means the Kontakt.io Software and Professional Services.
1.21 “Support Services” means the customer support services described at https://support.kontakt.io/hc/en-gb, and Documentation, but excluding any Professional Services.
1.22 “Terms” means these Terms of Service, together with any amendments, supplements or addenda that modify these Terms of Service
2. License. Subject to Customer’s compliance with the terms and conditions specified in these Terms or an applicable Order Form, Kontakt.io grants Customer a non-sublicensable, non-exclusive, non-transferable, limited and revocable license to use and access the applicable Kontakt.io Software specified in the applicable Order Form in accordance with the Documentation, starting from the license start date set forth in such Order Form until the License Expiration Date set forth in such Order Form or the earlier termination of such Order Form or these Terms. The Support Services and the Service Level Agreement are included as part of the license grant and contingent upon a valid license. The Firmware license for each item of Hardware is contingent upon Customer purchasing and maintaining a valid license to the Kontakt.io Software.
3. License Restrictions. Customer will not, directly or indirectly, do or attempt to do, or permit any other person (including any Authorized User) or entity to do, any of the following without Kontakt.io’s express prior written consent: (i) resell, white label, or reproduce the Kontakt.io Software or any individual element within the Kontakt.io Software, Kontakt.io’s name, any Kontakt.io trademark, logo or other proprietary information, or the layout and design of any part of the Kontakt.io Software; (ii) access, disrupt, tamper with, or use non-public areas of the Kontakt.io Software Systems, including any data or content stored therein or transmitted thereby; (iii) gain unauthorized access to, interfere with, disable, or disrupt the integrity or security of the Kontakt.io Software Systems, including any data or content stored therein or transmitted thereby; (iv) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect the Kontakt.io Software Systems or enforce a contractual usage limit; (v) transfer, sublicense, lease, lend, rent or otherwise distribute the Kontakt.io Software to any third party; (vi) copy, modify, make derivative works, decipher, decompile, disassemble or reverse engineer any aspect of the Kontakt.io Software, in whole or in part; (vii) impersonate or misrepresent an affiliation with any person or entity; (viii) use or access the Kontakt.io Software for any competitive purpose, including to develop or commercialize any product, service or technology that could, directly or indirectly, compete with the Products; (ix) perform benchmark testing on the Kontakt.io Software; (x) use the Kontakt.io Software to store or transmit Malicious Code; (xi) use the Kontakt.io Software to store or transmit infringing, libelous, defamatory, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or contractual rights; or (xii) violate any applicable law or regulation; or (xiii) use the Kontakt.io Software in any manner beyond the scope of rights expressly granted to Customer under these Terms. Kontakt.io has the right to monitor and investigate violations of this Section or any conduct that affects the Kontakt.io Software Systems and immediately suspend or terminate any or all of Customer’s access to the Kontakt.io Software if it reasonably suspects or determines that Customer has violated this Section or is otherwise using the Kontakt.io Software in a manner that negatively affects the Kontakt.io Software Systems. Kontakt.io may also consult and cooperate with law enforcement authorities to prosecute users who violate the law, which may require the provision of access to Kontakt.io Software Systems and any data stored therein to such authorities.
4. Hardware Installation and Maintenance. Customer is responsible for installation of the Hardware and ongoing maintenance of any equipment into which Hardware is installed. Customer may require professional installation of the Hardware or ongoing professional maintenance of any equipment into which Hardware is installed. If Customer is unable to install the Hardware or to conduct such ongoing maintenance, or if Customer is uncertain that Customer has the requisite skills and understanding, Customer agrees to consult with a qualified installer or maintenance professional. Improper installation of the Hardware or maintenance of the equipment into which Hardware is installed can lead to damage of such equipment or dangerous or life-threatening conditions, which can cause property damage, bodily injury, and/or death.
5. Product Updates.
5.1 General. Customer acknowledges and agrees that Kontakt.io reserves the right to continuously improve and modify the Products, and may from time to time (i) update the Kontakt.io Software and cause Firmware updates to be automatically installed onto Hardware; (ii) update the Apps; or (iii) upgrade Hardware equipment to newer models. Updates or upgrades may include security or bug fixes, performance enhancements, or new functionality, and may be issued with or without prior notification to Customer. Kontakt.io may change or discontinue all or any part of the Products, at any time and without notice, at Kontakt.io’s sole discretion. If Kontakt.io discontinues supporting the Products or Services you have ordered from Kontakt.io in accordance with these Terms prior to the applicable License Expiration Date without offering to replace them with an updated version or newer model, you may, as your sole remedy, upon written notice to Kontakt.io terminate the applicable Order Form for such Product or Services and request a refund equal to the pre-paid fees for Kontakt.io Software the time remaining in an applicable license term prorated to the period of time between (a) the date of termination and (b) the License Expiration Date for the applicable Order Form.
5.2 Beta Offerings. From time to time, Kontakt.io may in its sole discretion make Beta Offerings available to Customer. Customer’s use of any Beta Offerings is at its sole discretion and risk. Should Customer opt to use Beta Offerings: (i) Customer agrees to assume all risk, and waive and release Kontakt.io from any claims, liabilities, damages, and losses, arising from or related to, directly or indirectly, the Beta Offerings; and (ii) Customer agrees to defend, indemnify, and hold harmless Kontakt.io from any third party claims arising from or related to, directly or indirectly, the Beta Offerings. BETA OFFERINGS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. Customer acknowledges that Beta Offerings that may interact, interface, or integrate with third party products and/or services may not be validated or supported by such third parties and may interfere with the operations of or void warranties for such third-party products and/or services. Except as explicitly set forth otherwise in this Section 5.2, Beta Offerings will be treated as a “Product” under these Terms.
6. Payment, Shipping, and Delivery. Customer’s payment and billing terms are set forth in the Order Form. Unless otherwise set forth herein or in the applicable Order Form, all payments made to Kontakt.io under an Order Form are non-refundable, and will be made without deduction, offset or setoff of any kind. Kontakt.io may submit Customer contact information and information related to the timeliness of Customer’s payments to credit rating, credit reporting, or similar agencies. Any payment not received by the date due shall bear interest from the date past due at the lower of a rate of one percent (1%) per month (prorated for partial periods) or the maximum rate permitted by applicable law. Kontakt.io reserves the right to suspend Services and/or any licenses granted under these Terms if Customer is more than ten (10) days past due on any payment owed to Kontakt.io hereunder. Customer is responsible for all payments of applicable taxes, however designated or incurred under these Terms, and Customer will reimburse Kontakt.io for any taxes paid or payable on behalf of Customer. All shipments are FOB (Incoterms 2020) the applicable destination agreed in the applicable Order Form.
7. Accounts. Customer will be solely responsible for administering and protecting Accounts, and will use no less than all commercially reasonable and/or industry standard measures and precautions to do so. Customer will provide Accounts and access to the Kontakt.io Software only to Authorized Users, and to require such Authorized Users to keep Account login information, including user names and passwords, strictly confidential and not provide such Account login information to any unauthorized parties. Customer will ensure that Authorized Users only use the Kontakt.io Software strictly on behalf of Customer and subject to the same terms and conditions applicable to Customer herein. Customer is responsible and liable for any acts or omissions of an Authorized User (or any person using an Account) in connection with their use or access of the Products, including any act or omission that would constitute a breach of this Agreement if such act or omission was by Customer. Customer is solely responsible for monitoring and controlling access to the Kontakt.io Software and maintaining the confidentiality of Account login information and any provided API tokens. In the event that Customer or any Authorized User becomes aware that the security of any Account login information has been compromised, Customer will immediately notify Kontakt.io, de-activate such Account or change the Account’s login information, and cooperate as directed by Kontakt.io to determine the extent to which any other Accounts, the Products or any Kontakt.io Software Systems may have been compromised.
8. Customer Data.
8.1 Ownership and Usage. As between the parties, Customer owns all Customer Data. Customer hereby grants Kontakt.io a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, display, and distribute Customer Data in connection with operating, providing and improving the Services. The right to use such data will survive the termination of these Terms, unless legally prohibited or Customer requests in writing upon termination that such use be limited to non-personally identifiable data. Customer may export Customer Data at any time through the export features in the Kontakt.io dashboard or via the Kontakt.io API. Customer acknowledges that some information may not be exportable via the Kontakt.io dashboard or the API. If these Terms terminate or expire and Customer does not renew, Customer Data may be immediately deleted, and Kontakt.io is under no further obligation to store or transmit such Customer Data.
8.2 Customer Data Warranty. Customer represents and warrants that: (i) Customer will obtain all rights and provide any disclosures to or obtain any consents, approvals, authorizations and/or agreements from any employee or third party that are necessary for Kontakt.io to collect, use, and share Customer Data in accordance with these Terms; (ii) Kontakt.io’s use of the Customer Data as contemplated herein will not violate any applicable law; (iii) no Customer Data infringes upon or violates any other person’s or entity’s intellectual property rights, privacy, publicity or other proprietary or contractual rights and (iii) Customer will adhere to all applicable state, federal and local laws and regulations in the conduct of its business in relation to Kontakt.io and its receipt and use of the Products. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS KONTAKT.IO AND, IF RELEVANT, ITS SUBPROCESSORS AGAINST ANY LIABILITIES, DAMAGES, DEMANDS, LOSSES, CLAIMS, COSTS, FEES (INCLUDING LEGAL FEES), AND EXPENSES IN CONNECTION WITH ANY THIRD-PARTY LEGAL OR REGULATORY PROCEEDING ARISING FROM ANY ACT OR OMISSION OF THE CUSTOMER IN RELATION TO CUSTOMER INSTRUCTIONS OR FROM THE CUSTOMER’S BREACH OF THIS SECTION 10.2.
8.3 Data Protection. Kontakt.io will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Kontakt.io will not share Customer Data with third parties without Customer’s consent, except as necessary to provide the Services or when the release of data is compelled by law or permitted herein. In the event of a security breach involving Customer Data, Kontakt.io warrants that it will conduct an internal investigation and following the investigation, and will provide Customer with a written electronic copy of the results of the investigation of the breach. It is Customer’s sole responsibility to comply with Regulation (EU) 2016/679 and other data protection laws applicable to the Customer and the Customer Data.
9.1 Confidential Information. “Confidential Information” means any technical, financial, or business information disclosed by one Party to the other Party that: (i) is marked or identified as “confidential” or “proprietary” at the time of such disclosure; or (ii) under the circumstances surrounding such disclosure, a person exercising reasonable business judgment would understand to be confidential or proprietary. Kontakt.io Confidential Information includes any information related to the Products, including the pricing or features thereof, Documentation, Kontakt.io Software Systems, and any data or information that Kontakt.io provides to Customer in the course of providing the Products to Customer. Customer Confidential Information includes Customer Data. Confidential Information excludes information that: (i) is now or hereafter becomes generally known or available to the public, through no breach of the receiving Party’s confidentiality obligations; (ii) was known, without restriction as to use or disclosure, by the receiving Party prior to receiving such information from the disclosing Party; (iii) is acquired by the receiving Party from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the receiving Party without use or knowledge of or reference to any Confidential Information of the disclosing Party.
9.2 Confidentiality Obligations. The receiving Party agrees: (i) to maintain the disclosing Party’s Confidential Information in strict confidence; (ii) not to disclose such Confidential Information to any third parties (except for any contractors, agents or advisors of receiving Party under reasonable confidentiality obligations); and (iii) not to use any such Confidential Information for any purpose except to perform under these Terms or to exercise or enforce its rights under these Terms or as otherwise authorized by the disclosing Party. Notwithstanding anything to the contrary in these Terms, the receiving Party may disclose the disclosing Party’s Confidential Information to the extent required by law or regulation, provided that the receiving Party uses reasonable efforts to give the disclosing Party advance notice of such requirement and reasonably cooperates with the disclosing Party at the disclosing Party’s expense in preventing, limiting, or protecting such disclosure.
10. Proprietary Rights.
10.1 Kontakt.io Software. Kontakt.io and its licensors exclusively own all right, title and interest in and to the Kontakt.io Software that Customer accesses or licenses, including all associated intellectual property rights. Customer acknowledges that the Kontakt.io Software is protected by copyright, trademark, and other laws of the United States and foreign countries. Customer agrees not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Customer will and hereby does irrevocably transfer and assign to Kontakt.io all right, title, and interest it may have in the Kontakt.io Software (or any improvements, modifications, or derivative works thereof) to Kontakt.io and Kontakt.io hereby accepts such transfer. No ownership rights are being conveyed to Customer under these Terms. Except for the express rights granted herein, Kontakt.io does not grant any other licenses or access rights, whether express or implied, to any other Kontakt.io software, services, technology or intellectual property rights.
10.2 Firmware. The Firmware is licensed, not sold. Customer owns the Hardware on which the Firmware is recorded, but Kontakt.io retains ownership of the copy of the Firmware itself, including all intellectual property rights therein. Customer acknowledges that the Firmware is protected by patent, copyright, trademark, and other laws of the United States and foreign countries. Kontakt.io reserves all rights in the Firmware not expressly granted to Customer in these Terms. Customer acknowledges and agrees that portions of the Firmware, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Kontakt.io and its licensors.
11. Battery Warranty. If during the service term set forth in the applicable Order Form for any Hardware, the battery for such Hardware runs out, Customer may submit a warranty request to Kontakt.io (and, if requested by Kontakt.io, return such Hardware to Kontakt.io), and Kontakt.io will, at its option, either replace the battery for such Hardware or replace the applicable Hardware. The foregoing warranty will only apply if Customer is operating the applicable Hardware on its default settings. For clarity, if Customer reconfigures or modifies the settings for such Hardware, the foregoing warranty will be void.
12. Links to and Integrations with Third Party Products or Services. The Products may contain links to and/or integrate with third party websites, resources, products and/or services. KONTAKT.IO PROVIDES THESE LINKS AND INTEGRATIONS “AS IS” WITHOUT WARRANTY OF ANY KIND AND ONLY AS A CONVENIENCE. Kontakt.io is not responsible for the content, functionality, or availability of such third-party products and/or services. Customer acknowledges sole responsibility for and assumes all risk arising from its use of any third-party websites, resources, products and/or services and any links or integrations made available thereto.
13. Publicity. Customer hereby grants Kontakt.io permission to use the Customer name and logo on Kontakt.io’s website, press releases, customer lists, and investor and marketing materials to list Customer as a customer. Kontakt.io will not use Customer’s name, trademarks, or logos in any other way without Customer’s prior consent.
14. Term. The term of these Terms begins upon the date on which you accept these Terms, by clicking a box indicating your acceptance, by executing an Order Form or other contract that references these Terms, by purchasing Products or otherwise entering into an Order Form or other contract with Kontakt.io, a Kontakt.io reseller, or any other entity or individual for the purchase of Products or under which Products are made available to you, or by otherwise accessing and/or using the Products, whichever is the earlier, and will continue until (i) the License Expiration Date for the last active Order Form or other contract you entered into for the purchase of Products or under which Products are made available to you, (ii) you are no longer authorized to access and/or use the Products, or (iii) these Terms are otherwise terminated earlier as provided hereunder, whichever is earliest.
14.1 Renewal. Unless you notify Kontakt.io in writing of your intent to cancel the applicable Order Form or other contract you entered into for the purchase of Products or under which Products are made available to you at least thirty (30) days prior to the License Expiration Date, Kontakt.io may renew your license term, effective on the License Expiration Date, for up to the same period as the immediately preceding license term (or, in Kontakt.io’s discretion, shorter periods to align license expiration dates across multiple active orders) (each such period a “Renewal Term”) at any time up to ninety (90) days after the License Expiration Date. Subject to Kontakt.io’s renewal rights set forth in the foregoing sentence, you and Kontakt.io may mutually agree to enter into a new Order Form to renew your license term upon the License Expiration Date, which new Order Form may include additional or different Products or license terms to the extent mutually agreed. If Kontakt.io renews your license term as described in the first sentence of this paragraph, license pricing for each Renewal Term will not exceed the license price for the immediately preceding license period on a prorated basis (i.e., the Initial Term or immediately preceding Renewal Term, as applicable) plus 10% per year from the original purchase date, and your payment method and terms will remain the same as indicated on the applicable Order Form (e.g., monthly if you were allowed monthly payments, or yearly if you were allowed annual payments or upfront payment). Please email firstname.lastname@example.org for any questions regarding automatic renewal.
14.2 Termination. Kontakt.io may terminate these Terms, any Order Form, and your access to and use of the Kontakt.io Software at its sole discretion, at any time upon notice to you. However, if Kontakt.io so terminates at its convenience under the preceding sentence (i.e., not for breach or for cause as may be otherwise set forth herein or in an applicable Order Form), then Kontakt.io will provide you with a refund equal to the pre-paid fees for Kontakt.io Software the time remaining in an applicable license term prorated to the period of time between (a) the date of termination and (b) the License Expiration Date for the applicable Order Form. Unless otherwise set forth herein or in the applicable Order Form, an Order Form cannot be terminated prior to the License Expiration Date.
14.3 Effect of Termination. Upon any termination or expiration of these Terms, the following Sections of these Terms will survive: 3 (License Restrictions), 5.2 (Beta Offerings), 6 (Payment, Shipping, and Delivery), 88 (Customer Data), 9 (Confidentiality), 10 (Proprietary Rights), 14 (Term), 15 (Warranty Disclaimers), 16 (Limitation of Liability), 17 (Dispute Resolution), 18 (Jury Trial; Class Action Waiver), and 19 (General Terms). At the Customer’s request, and subject to Kontakt.io’s data retention and backup policies, Kontakt.io will delete and remove any Customer Data on the Hosted Software.
15. Warranty Disclaimers. THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, KONTAKT.IO EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Kontakt.io makes no warranty that the Products or Services will meet Customer’s requirements or be available on an uninterrupted, secure, or error-free basis. Kontakt.io makes no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any analytics or Customer Data. For more information about the Kontakt.io Hardware warranty, please visit https://kontakt.io/returns-warranty-policy/.
16. Limitation of Liability.
16.1 No Consequential Damages. NEITHER KONTAKT.IO NOR CUSTOMER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PRODUCTS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY.
16.2 Cap. EXCEPT AS TO ANY EXPRESS INDEMNIFICATION OBLIGATION SET FORTH HEREIN, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS EXCEED THE AMOUNTS CUSTOMER HAS PAID TO KONTAKT.IO HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGE, OR IF CUSTOMER HAS NOT HAD ANY PAYMENT OBLIGATIONS TO KONTAKT.IO (FOR EXAMPLE THROUGH A FREE TRIAL), ONE HUNDRED DOLLARS ($100).
16.3 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KONTAKT.IO AND CUSTOMER.
17. Dispute Resolution.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action between you and Kontakt.io or its successors or assigns shall exclusively be settled through binding and confidential arbitration and not in a state or federal court of law.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes collectively, the “Rules and Procedures"
You must abide by the following rules: the arbitration shall be confidential, and neither you nor Kontakt.io may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award, and each party shall pay its own attorneys’ fees and expenses.
Notwithstanding the foregoing, either you or Kontakt.io may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other Party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in the State of New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in the State of New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within the State of New York for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. This arbitration provision shall survive termination of this Agreement and the termination of your Kontakt.io account.
If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in the State of New York.
18. Jury Trial; Class Action Waiver. YOU AND KONTAKT.IO AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Kontakt.io agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of the arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
19. General Terms.
19.1 Miscellaneous. These Terms together with any applicable Order Form constitute the entire and exclusive understanding and agreement between Kontakt.io and you regarding the Products, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Kontakt.io and you regarding the Products. If there is a conflict between the terms of an Order Form and these Terms, then the terms of the Order Form controls over these Terms. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Kontakt.io’s prior written consent, except in the case of a merger, acquisition, or sale of all or substantially all assets of your company. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Kontakt.io may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the Parties, their successors and permitted assigns. Any notices or other communications provided by Kontakt.io under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; (ii) by posting to Kontakt.io’s website; or (iii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. Either Party’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of both Parties. Except as expressly set forth in these Terms, the exercise by either Party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
19.2 Acceptable Use. Customer may not, and may not allow any third-party, including its Authorized Users, to (a) use the Products: (i) for any inappropriate, improper, discriminatory, illegal, or otherwise harmful purpose or (ii) to violate, or encourage the violation of, the rights of others which includes, without limitation, legal rights (e.g., intellectual property or proprietary rights) or human rights (i.e., the rights inherent to all human beings regardless of race, sex, nationality, ethnicity, language, religion, or any other status, including without limitation the right to life and liberty, freedom from slavery and torture, freedom of opinion and expression, the right to work and education, and many more), each as reasonably determined by Kontakt.io; or (b) engage in abusive, harassing, threatening, offensive, or otherwise improper conduct towards Kontakt.io or its employees, agents, service providers, partners, or other customers.
19.3 Export Restrictions. Customer will not use the Products in violation of applicable export control or sanctions laws of the United States or any other applicable jurisdiction. Customer will not use the Products if Customer is or is working on behalf of any restricted person or entity, including those listed on the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Department of Commerce Denied Person's List or Entity List, the State Department's Debarred list, or similar denied parties list without prior authorization by the U.S. Government. Customer will not export, re-export, or transfer the Products if for use directly or indirectly in any prohibited activity described in Part 744 of the U.S. Export Administration Regulations, including certain nuclear, chemical or biological weapons, rocket systems or unmanned air vehicle end-uses.
19.4 Force Majeure. Kontakt.io is not liable or responsible, nor will be deemed to have defaulted under or breached these Terms, for any failure to perform or delay in performing its obligations under these Terms due to an event of force majeure. An event of force majeure is any event or circumstance beyond Kontakt.io’s reasonable control, such as war, hostilities, act of God, earthquake, flood, fire, or other natural disaster, strike or labor conditions, material shortage, epidemic, disease, government action, or failure of utilities, transportation facilities, or communication or electronic systems.
19.5 Usage Data. Kontakt.io may collect and use (in perpetuity) any and all analytics, statistics or other data related to the Customer Data and Customer’s use of the Products (i) in order to provide the Products to Customer; (ii) for statistical reporting and use (provided that such data is not personally identifiable); or (iii) to monitor, analyze, develop upon, maintain, and improve the Products; including by providing such data to third party services, vendors and contractors for the aforementioned purposes.
19.6 Feedback. From time-to-time, Customer may provide Kontakt.io with feedback, suggestions, error correction requests and feature requests with respect to the Products (“Feedback”). Customer acknowledges that Kontakt.io is free to utilize such Feedback, without restriction or compensation payable to Customer, for any business purpose, including, but not limited to the improvement, development, maintenance, marketing and support of the Products and other related technologies.
19.7 Changes to Terms or Services. Kontakt.io may modify the Terms at any time, in our sole discretion. If Kontakt.io does so, Kontakt.io will inform you by posting the modified Terms to the Services or our website or through other communications with you, our Customer. It’s important that you review the Terms whenever Kontakt.io modifies them because if you continue to use the Products after Kontakt.io has posted or otherwise informed you of the modified Terms, you are indicating to Kontakt.io that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not continue to use the Products.
19.8 Contact Information. If you have any questions about these Terms or the Products, please contact Kontakt.io email@example.com.
Appendix 1 – Service Level Agreement
1. Target. Kontakt.io shall exercise reasonable efforts to achieve 99.50% of Uptime (“Target”) in providing the Services. “Uptime” shall mean the ratio of the total monthly number of minutes of availability of the Services to the total monthly number of minutes of unavailability of the Services.
a. In the event that Uptime falls below the Target but is maintained at a minimum of 99% during any calendar month, Kontakt.io shall credit Customer 15 % of such month’s applicable service fees, which can be applied to the next billing cycle.
b. In the event that Uptime falls below 99% but is maintained at a minimum of 95% during any calendar month, Kontakt.io shall credit Customer 30 % of such month’s applicable service fees, which can be applied to the next billing cycle.
3. Termination. In the event that Uptime falls below 95%, Customer is entitled to terminate this agreement and to a total refund of such months’ applicable service fees. Credits issued pursuant to this Agreement apply to outstanding or future invoices only and are forfeit upon termination of this Agreement.
4. Customer Must Request Service Credit. In order to receive any of the Service Credits described above, Customer must notify Kontakt.io within 30 days from the time Customer becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Customer’s right to receive a Service Credit.
a. Force Majeure. Kontakt.io will not be deemed to have failed to achieve the Target if such failure occurs as a result of an event beyond Kontakt.io’s reasonable control, including but not limited to governmental acts, work stoppages, fire, civil disobedience, riots, terrorist acts, rebellions, accidents, explosions, interruptions or imperfections in telephonic service, communications line or equipment failures, satellite malfunctions, electrical disturbances, brown-outs or black-outs, floods, storms, earthquakes, acts of God and similar occurrences, provided that Kontakt.io uses commercially reasonable efforts to fulfill its obligations under this Agreement.
b. Cloud Services. Kontakt.io will not be deemed to have failed to achieve the Target if such failure occurs as a result of interruptions or imperfections in a cloud computing service such as AWS, Azure or Google Cloud (“Cloud Services”).
c. Act of Customer. Kontakt.io shall also not be deemed to have failed to achieve the Target if such failure occurs due to an act or omission of the Customer.
d. Scheduled Maintenance. Scheduled maintenance shall be excluded from the calculation of Uptime. Scheduled maintenance shall be announced one week prior to release and not exceed 2 hours per month.
6. Support Response Times
a. Support Generally. Questions and issues related to the Services will be addressed by Kontakt.io during Service Support Hours.
b. Errors. Kontakt.io shall use commercially reasonable efforts to resolve Errors in a manner consistent with the requirements of this SLA. If at any point Kontakt.io determines that a problem reported by Customer is not the result of an Error, Kontakt.io will promptly report that determination to Customer. Resolution of problems caused by Outside Factors or not the result of Errors is not covered under Kontakt.io’s Support obligations, and Kontakt.io reserves the right to charge for services performed, at Customer’s request, to diagnose or repair problems not covered under Kontakt.io’s support obligations.
c. Customer’s Obligations Relating to Support Requests. In order to ensure that Kontakt.io is able to meet the response times set forth above and provide support in the most efficient manner, Customer agrees, in addition to using its reasonable efforts to provide Kontakt.io with all relevant information reasonably necessary for Kontakt.io to respond to a support request and Customer’s general cooperation: (a) to designate primary and secondary liaisons who have been trained on the Services and to provide Kontakt.io with all necessary after-hours contact information for those individuals; (b) that all support requests will be centralized through the primary and secondary liaisons; (c) to submit support requests to Kontakt.io’s designated support contact; (d) to use reasonable efforts to diagnose and resolve problems in the operation of Customer’s interface to the Services prior to contacting Kontakt.io for support; (e) to use reasonable efforts to confirm that reported problems are due to a malfunction of the Services; (f) to use reasonable efforts to consult Kontakt.io-supplied documentation before submitting questions about the Services to Kontakt.io; and (g) to work with Kontakt.io to return support requests to reasonable levels if Kontakt.io deems that Customer’s support requests exceed reasonable or typical levels for the Services. Customer must notify Kontakt.io of any problems with the Services in a timely manner (depending on the circumstances, but in no event later than thirty (30) days after becoming aware of an issue with the Service).
i. “Errors” means verified and reproducible malfunctions of the Services that prevents the Services from performing as described in the Order Form or the applicable documentation.
ii. “Outside Factors” means downtime caused by circumstances beyond Kontakt.io’s control, including without limitation: Customer modifications, events described in Section 5 of this SLA, general internet outages, failure of Client’s infrastructure or connectivity, computer and telecommunications failures and delays not within [Company]’s control, delays or unavailability due to credit bureaus or internet service providers, and network intrusions or denial-of-service attacks.
iii. “Service Support Hours” are the following hours: 9am through 5pm EST and CET during which Kontakt.io’s support teams will be available to provide routine support via firstname.lastname@example.org .