Last updated March 16, 2015. Replaces any previous version of the terms in its entirety.
These terms govern your use of our websites, network infrastructure and software bundles that we define as part of our Products and Services, including any applications, servers, scripts, multimedia, and any related documentation (collectively "Software"). By using the Products and Services, you agree to these terms. If you have entered into another agreement with us concerning specific Services or Software, then the terms of that agreement controls where it conflicts with these terms. As discussed below, you retain all rights and ownership you have in your content that you make available through the Products and/or Services.
It is the express wish of KDI that these Terms of Service and all related documents have been drawn up in English and that the English version of this Agreement shall be the sole version used in interpreting and enforcing this Agreement.
- "Accident" means an act of God, terrorism, labor action, fire, flood, earthquake, governmental act, order, or restriction, denial of service attack and other malicious conduct, utility failure, or any other cause of Service unavailability that was beyond KDI's reasonable control.
- "Affiliate" means, for a Party, any other entity that has partnered with the Party.
- "Claim" means a claim, action, proceeding, or demand made against a person or entity, however arising and whether present or future, fixed or unascertained, actual, threatened or contingent.
- "Content" means all audio, video, multimedia, data, text, images, documents, computer programs, and any other information or materials uploaded by or on behalf of Users in connection with their use of the Service offered by KDI.
- "Device" means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, consistent with the configuration recommendations in the Documentation, including desktop computers, laptops, tablets, mobile devices, telecommunication devices, Internet-connected devices, and hardware products capable of operating a wide variety of productivity, entertainment, or software applications.
- "Documentation" means the technical user manual describing the features and functionalities of the applicable Software, as provided by KDI and generally in the software or online; "Documentation" does not include any forum or content contributed by any third party.
- "Effective Date" means the effective date stated in the Sales Order.
- "Incident" means any Service unavailability resulting from KDI's applications, Content, or Partner's equipment, or the acts or omissions of any User of the Service.
- "Information" means any data or information to which you have access in connection with the Products, Servers and Services or otherwise as a result of this Agreement, including data or information concerning any User, any Transaction, or any Partner. "Information" does not include information that is or becomes generally publicly available at or after the time of disclosure.
- "KDI" means K&D Interactive Inc. - a Delaware corporation based in San Francisco, United States of America.
- "License" means any credentials provided by KDI to a Partner to operate a Server under their control, for the duration of the term granted by the server's Agreement.
- "Loss" means any damage, loss, cost, expense, or liability incurred by a person or entity.
- "Maintenance" means any maintenance performed during KDI's standard maintenance windows and any other maintenance of which Users are given advance notice.
- "Metric" means each of the per-unit metrics specified by KDI concerning the licensed quantities in the Sales Order, to describe the scope of Partner's license to use the Products and Services.
- "Partner" means a legal entity (individual or company) that is permitted by KDI to operate a licensed application under their control, and resell Products and Services to end Users.
- "Partner Channel" means the collection of ways KDI communicates with its Partners to provide Documentation, Support, Updates and Releases to their Servers. The specific communication methods may be outlined in various promotional material and Documentation, as well as the KDI Site.
- "Party" (plural "Parties") means the entities involved in this Agreement, which in most cases are KDI and either a User or a Partner
- "Product" means any application or software bundle developed by KDI for commercial use.
- "Release" means a new stable version of a Service or Product owned by KDI that may be provided to the Partners at any time, in connection with their server License, including any modified versions and copies of such server.
- "Server" means the software application developed by KDI and packaged in a disk image format, sold and grant access to by KDI or third-party vendors, as they may occur from time to time.
- "Service" means any remotely hosted application that allows the participation of Users, individually and collectively.
- "Site" means a website hosted on a domain owned by KDI, including any successor or related site, as designated. If no designation is available to give context then it refers to the company website, located at: http://kdi.co
- "Subscriber" means a User deemed with an active Subscription at the time of reference.
- "Subscription" means a recurring payment to any Service, for the period of time for which a User has elected to pay for and use the Service as indicated in the Service agreement, but does not include any server Licenses.
- "Support" means any consulting, training, implementation, or technical services provided by KDI to Users and Partners, by any means of cummunication as set out in the Website.
- "Term" means the duration of the license granted for the Services, Products or Servers (as applicable), as specified in the Sales Order, or any shorter term arising from a termination of this Agreement.
- "Terms of Service" means the then-current online terms of service located at http://kdi.co/terms, or any successor website thereto, as it may be updated from time to time.
- "Transaction" means the sales order form, statement of work, purchase authorization letter, or other written document for purchasing a Subscription to the Products and Services provided by KDI or Partners, or for a License of a Partner to a Server.
- "Update" means a defined number of updates, upgrades and additions of a Service or Product owned by KDI, rolled out for its Users, that enhances said Service or Product with new features and/or bugfixes. The Update may be both a server and client software upgrade, automatically delivered to Users on an as-needed basis.
- "User" means an online user who interacts with the Serviceof any of the Products, provided by KDI or its Partners.
- "We" or "Us" or Our means KDI and affiliates.
- "You" means a Partner or User, whichever is applicable in the related context.
2.1 Eligibility. You may only use the Products and Services if you are (a) over 13 years old and (b) allowed by law to enter into a binding contract.
2.2 License. By accessing these Products and Services, you are agreeing to be bound by these website Terms of Service, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. Subject to your compliance with these terms and the law, you may access and use the Products and Services.
2.4 Intellectual Property. We (and our licensors) remain the sole owner of all right, title, and interest in the Products, Services and Software. We reserve all rights not granted under these terms. All materials contained in KDI Products and Services are protected by the applicable copyright and trade mark law. You acknowledge that KDI and its licensors own all right, title, and interest in: (a) the Products, Services, Software and Servers; (b) any KDI software provided in connection with the Products, Services or Servers; and (c) all graphics, logos, service marks, and trade names, including third-party names, product names, and brand names used by KDI in connection with the Products, Services or Servers (the "Marks"). You shall not alter or remove any Marks or KDI copyright notices included in the Service (excluding Marks). You or Your respective licensors, as applicable, own all right, title, and interest in and to any graphics, logos, service marks, and trade names used by You in connection with the Products, Services or Servers.
2.5 Maintainance. KDI may perform maintenance on some or all of the Products and Services in order to upgrade hardware or software that operates or supports the Products and Services, implement security measures, or address any other issues it deems appropriate for the continued operation of the Products and Services.
2.6 Modifications of Terms. KDI may revise these Terms of Service for its website at any time without notice. By using the Products, Services and Servers you are agreeing to be bound by the then current version of these Terms of Service.
These terms govern your use of Our Services, including any applications, multimedia, and any related documentation (collectively "Software"). By using the Services or Software, you agree to these terms. If you have entered into another agreement with us concerning specific Services or Software, then the terms of that agreement controls where it conflicts with these terms. As discussed more in detail below, you retain all rights and ownership you have in your content that you make available through the Services.
3.1 Eligibility. You represent and warrant that You have all necessary right, power and authority to enter into this Agreement and to perform the acts required of You hereunder including having a valid account to use the software applications that generate Content, and the right to submit Content and Information in connection with the Service. Otherwise, You are not permitted to submit such Content or Information to KDI or the Service.
3.2 License. Subject to Your compliance with the terms and conditions of this Agreement, KDI grants to You a non-exclusive, non-transferable, revocable right to access and use the Service according to the terms and conditions of this Agreement and the applicable Terms of Service. Permission is granted to temporarily download one copy of the materials (Information or Software) on KDI's Services for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not: (a) modify or copy the materials; (b) use the materials for any commercial purpose, or for any public display (commercial or non-commercial); (c) attempt to decompile or reverse engineer any software contained on K&D Interactive's web site; (d) remove any copyright or other proprietary notations from the materials; or (e) transfer the materials to another person or "mirror" the materials on any other server.
3.3 Log-In Information. To gain access to and use the Service, You may be required to create a log-in ID and password ("Log-In Information"). You are responsible for all activity occurring under Your Log-In Information, and You must keep Your Log-In Information confidential and not share Your Log-In Information with third parties. KDI has no obligation or responsibility with regard to Your use, distribution, disclosure, or management of Log-In Information. Notwithstanding the foregoing, KDI may require You to change Your Log-In Information if such Log-In Information is inconsistent with the terms of this Agreement.
3.4 Storage. When the Services provide storage, we recommend that you continue to back up your content regularly. We may create reasonable technical limits on your content, such as limits on file size, storage space, processing capacity, and other technical limits. We may suspend the Services until you are within the storage space limit associated with your account.
3.5 Account Information. You are responsible for all activity that occurs via your account. Please notify Customer Support immediately if you become aware of any unauthorized use of your account. You may not (a) Share your account information (except with an authorized account administrator) or (b) use another person's account. Your account administrator may use your account information to manage your use and access to the Services.
3.6 User-Generated Content. We may host third-part materials from our Users. You acknowledge and agree that by a accessing or using a Service, You may be exposed to content from third parties that You find offensive, upsetting, indecent, or otherwise objectionable. Your sole remedy is to simply stop viewing the content. You may report any violations of this Agreement to KDI's Support service.
3.7 Feedback. You have no obligation to provide us with ideas, suggestions, or proposals ("Feedback"). However, if you submit Feedback to us, then you grant us a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferrable, to use, reproduce, publicly display, distribute, modify, and publicly perform the Feedback. You acknowledge and agree that such Feedback will become the property of KDI, and KDI has no obligation to compensate You for such Feedback.
3.8.1 Availability. Sites hosting the Services are accessible worldwide but this does not mean all Services or service features are available in your country, or that user-generated content available via the Services is legal in your country. We may block access to certain Services (or certain service features or content) in certain countries. It is your responsibility to make sure your use of the Services is legal where you use them. Services are not available in all languages.
3.8.2 Downtime. KDI's objective is to make reasonable efforts to provide Service Availability of 99.9% as measured on a monthly basis. Service Availability is defined as the time that the Service is capable of receiving, processing, and responding to requests, excluding (a) Scheduled Maintenance, (b) Customer Error Incidents, and (c) Accidents. Service Availability is calculated as a percentage by dividing the number of minutes the Service is available during the applicable month by the number of total minutes in the applicable month, excluding in all cases Scheduled Maintenance, Customer Error Incidents, and Accidents.
3.8.3 Restrictions. User may not: (i) attempt to gain unauthorized access to the service, materials, other accounts, computer systems, or networks connected to any KDI server or to the Service, through hacking, password mining, or any other means; (ii) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Service; (iii) engage in any systematic extraction of data or data fields (including email addresses) except as may be reasonably contemplated through the normal use of the Service; (iv) use the Service for malicious injection of dial tone multifrequency commands; or (v) upload, record, publish, link to, or otherwise transmit or distribute User Content that would breach Users representations and warranties regarding User Content as described in this Agreement.
3.8.4 Physical Limitations. The Service may not reliably work in some international jurisdictions that regulate Voice Over IP services or where the local government actively blocks or otherwise interferes with cross-border data flows. The Service is not designed or licensed for use in hazardous environments requiring fail-safe controls, including without limitation operation of nuclear facilities, aircraft navigation/communication systems, air traffic control, and life support or weapons systems. Without limiting the generality of the foregoing, KDI, its affiliates, suppliers, licensors, and resellers specifically disclaim any express or implied warranty of fitness for such purposes.
3.9 Your Content
You may upload Content to the Service in connection with Your use of the Service. KDI does not verify, endorse, or claim ownership of any Content, and You retain all right, title, and interest in and to the Content. Your Content and the Content of Participants may be stored on KDI's servers at Your request as necessary for KDI to provide the Service. You are solely responsible for making and keeping backup copies of Content. KDI shall use commercially reasonable efforts to block the uploading of Content to the Service that contains viruses detected by using industry standard virus detection software. Except as provided herein, KDI has no responsibility or liability for the deletion or accuracy of Content, the failure to store, transmit or receive transmission of Content (whether or not processed by the Service), or the security, privacy, storage, or transmission of other communications originating with or involving use of the Service. Certain features of the Service enable You to specify the level at which such Service restricts access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content.
3.9.1 Ownership. You retain all rights and ownership of your content. We do not claim any ownership rights to your content. We require certain licenses from you to your content to operate and enable the Services. When you upload content to the Services, you grant us a non-exclusive, worldwide, royalty-free, sub-licensable, and transferrable license to use, reproduce, publicly display, distribute, modify (so as to better showcase your content, for example), publicly perform, and translate the content as needed in response to user driven actions (such as when you choose to store privately or share your content with others). This license is only for the purpose of operating and improving the Services.
3.9.2 Sharing. Some Services may provide features that allow you to Share your content with other users or to make it public. "Share" means to email, post, transmit, upload, or otherwise make available (whether to us or other users) through your use of the Services. Other users may use, copy, modify, or re-share your content in many ways. Please consider carefully what you choose to Share or make public as you are entirely responsible for the content that you Share.
3.9.3 Level of Access. We do not monitor or control what others do with your content. You are responsible for determining the limitations that are placed on your content and for applying the appropriate level of access to your content. If you do not choose the access level to apply to your content, the system may default to its most permissive setting. It's your responsibility to let other users know how your content may be shared and adjust the setting related to accessing or sharing of your content.
3.9.4 Comments. The Services may allow you to comment on content. Comments are not anonymous, and may be viewed by other users. Your comments may be deleted by you, other users, or us.
3.9.5 Access to Content. You acknowledge that the Service is automated (e.g., Content is uploaded using software tools) and that KDI personnel will not access, view, or listen to any Content, except as reasonably necessary to perform the Service, including but not limited to the following: (a) respond to support requests; (b) detect, prevent, or otherwise address fraud, security, or technical issues; (c) as deemed necessary or advisable by KDI in good faith to conform to legal requirements or comply with legal process; or (d) enforce this Agreement, including investigation of potential violations hereof, as further described in Section "Investigations".
3.9.6 Warranty. By uploading your content to the Services, You represent and warrant that (a) You are the owner, licensor, or authorized User of all Content to use and Share; and (b) You will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) advocates, promotes, incites, instructs, assists or otherwise encourages violence or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or KDI, or any rights of publicity or privacy of any party; (iii) attempts to mislead others about Your identity or the origin of a message or other communication, or impersonates or otherwise misrepresents Your affiliation with any other person or entity, or is otherwise materially false, misleading, or inaccurate; (iv) promotes, solicits or comprises inappropriate, harassing, abusive, profane, defamatory, libelous, threatening, hateful, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity; (v) is harmful to minors; (vi) contains any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, Information, or property of another; or (vii) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising).
3.10 Online Services
3.10.2 KDI does not control, endorse or accept responsibility for websites or Online Services offered by third parties. Any dealings between You and any third party in connection with a website or Online Services, including delivery of and payment for goods and services and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such third party.
3.10.3 EXCEPT AS EXPRESSLY AGREED BY KDI OR ITS AFFILIATES OR A THIRD PARTY IN A SEPARATE AGREEMENT, YOUR USE OF WEBSITES AND ONLINE SERVICES IS AT YOUR OWN RISK UNDER THE WARRANTY AND LIABILITY LIMITATIONS OF RELATED SECTIONS; DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
3.11 License Updates and Termination
3.11.1 Modifications. We may modify or discontinue the Services, Software, or any portions or features thereof at any time without liability to you or anyone else. However, we will make reasonable effort to notify you before we make the change. We will also allow you a reasonable time to download your content. If we discontinue a Service in its entirety, then we will provide you with a pro rata refund for any unused fees for that Service that you may have prepaid.
3.11.2 Additional Terms. Some Services or Software are also subject to the additional terms below (the "Additional Terms"). New Additional Terms may be added from time to time.
3.11.3 Order of Precedence. If there is any conflict between the terms in this Agreement and the Additional Terms, then the Additional Terms govern in relation to that Service or Software.
3.11.4 Automatic Termination of License. This license shall automatically terminate if you violate any of these restrictions and may be terminated by KDI at any time, at its sole discretion. Upon terminating your viewing of these materials or upon the termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format.
3.11.5 Manual Termination of License. You may revoke this license to your Content and terminate Our rights at any time by removing your Content from the Service. However, some copies of your Content may be retained as part of our routine backups.
If we provide the Service to you as part of a paid Subscription, then subject to your compliance with the "Services" terms, the following terms also apply. This section applies only if You order the Products and Services directly from KDI. If You order the Products and Services from a KDI Partner, the payment terms are as agreed between You and the KDI Partner.
4.1 License. Subject to your compliance with these terms and the license scope specified in the documentation accompanying the Service, we grant you a non-exclusive license to install and use the Service: (a) in the Territory, (b) so long as your subscription is valid, and (c) consistent with these terms and related documentation accompanying the Service. "Territory" means worldwide, but excludes any U.S. embargoed countries and countries where you are prohibited from using the Software or the Services. There is no limitation in the number of devices you associate with use of Your paid Subscription. This Agreement shall be in effect for the term of each applicable Subscription Term as specified in the License Metrics unless earlier terminated as set forth below (section "Terminations").
4.2 Eligibility. Subscriptions are available to everyone in the general public over the age of 13 at the time of purchase.
4.3 Setup. The service begins when KDI confirms the initial payment. The User will be charged the fee stated at the time of purchase at regular intervals as outlined in the selected term, until they cancel. Once the fee has been charged at the start of each term, that charge is final and no refund is available. The fee is subject to change; but always with notifying Users beforehand. Users can cancel anytime by visiting the Service's account page or contacting Customer Support. Canceling a subscription stops the charge at the start of the next billing term — but the service will continue through the end of the User's current term.
4.4 Partner subscriptions. For Users who purchase subscriptions indirectly through Partners, KDI recieves no royalties and reserves the right to be relieved from any possible Claims of Losses from Accidents and/or unfortunate Incidents.
4.5.1 Subscription Fees. Use of the Services is subject to Your payment of fees (the "Subscription Fees"), which may vary according to the subscription option to which You have subscribed and/or the Subscription Term. If You purchased a Subscription we will collect the Subscription Fees for the Services in advance of each Subscription Term. You are responsible for paying all taxes levied in connection with Your use of the Services. Your payment processing provider or bank may impose on You other fees in connection with Your payment of the Subscription Fees, and KDI has no connection to or responsibility for such fees.
4.5.2 Payment. You must pay the fees according to the payment terms in the Sales Order. All invoices will only be delivered electronically to You. Any fees that are unpaid as of the date of termination or expiration will be immediately due and payable. You must pay any applicable taxes, and any applicable third-party fee (including, for example telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees). We are not responsible for these fees. We may take steps to collect the fees you owe us. You are responsible for all related collection costs and expenses.
4.5.3 Automatic Renewal of Subscriptions. For most subscription options, Your subscription to the Services will automatically renew at the end of each Subscription Term until You cancel Your subscription. In connection with these options, on the subscription renewal date, KDI will automatically charge Your payment method for the next Subscription Term ("Billing Date"). You can find Your Billing Date in the "Administration" area of the Service. You will receive a receipt via email once Your card has been charged. You may cancel Your subscription at any time before Your next Billing Date by visiting the "Administration" area of the Service and clicking the ‘cancel' button at the Change Service Plan page. You will have access to the Services until the end of Your then-current Subscription Term.
4.5.4 Nonrefundable Fees. All Subscription Fees paid by You in relation to a subscription to the Services are nonrefundable.
4.5.5 Changes in Price and/or Terms. KDI may at any time, upon notice required by applicable law, (a) change the price of subscriptions for the Services or any part thereof, (b) institute new charges or fees, or (c) change this Agreement. Price and Agreement changes and institution of new charges implemented during Your subscription term will apply to subsequent Subscription Terms and to all new subscribers after the effective date of the change. If You do not agree to any such changes, then You must terminate Your Subscription to the Services and stop using the Services. Your continued use of the Services after the effective date of any such change shall constitute Your acceptance of such change.
4.5.6 Failure to Pay. If You fail to pay any amount due under this Agreement within 15 days of the date of KDI's notice of your failure to pay, KDI may, in its sole discretion, terminate this Agreement or the applicable Sales Order or suspend or restrict provision of the Products and Services. You agree that in the event KDI is unable to collect the Subscription Fees owed by You to KDI for the Services, KDI may take the steps it deems necessary to collect such Subscription Fees from You and that You will be responsible for all costs and expenses incurred by KDI in connection with such collection activity.
4.5.7 Disputes. If You believe in good faith that KDI has incorrectly billed You, You must contact KDI in writing within 30 days of the invoice date, specifying the error. Unless You have correctly notified KDI of the dispute, You must reimburse KDI's reasonable collection costs. You must pay the undisputed portions of KDI's invoice as required by this Agreement.
4.5.8 Additional Fees. You acknowledge that Your ability to access and use the Service may require the payment of third party fees (such as telephone toll charges, ISP, or airtime charges) and that You are responsible for paying such fees. KDI is not responsible for any equipment or third party services You may need to be able to access and use the Service.
4.5.9 Cancellation If a subscription is cancelled it will last till the duration of the paid term. For any other problems encountered please contact Customer Support.
4.6.1 Access Grant from Users. (a) During the Subscription Term, Users grant KDI and its Partners a non-exclusive, worldwide, royalty-free license to use, copy, transmit, sub-license, index, store, and display User Data and User Content, solely to the extent necessary to provide the Services and Products to User and enforce its rights under this Agreement. (b) Additionally, Users grant KDI and its Partners a non-exclusive, perpetual, worldwide, and royalty-free license to use, copy, transmit, sub-license, index, model, aggregate (including combination with similar data of other users of KDI or its Partners), publish, display, and distribute any anonymous information derived from User Data, such as, but not limited to, web browser, screen resolution, and mobile device-type information.
4.6.2 Device Access. The Services provided as part of the Subscription are without restrictions on number of devices where the subscription can be simultaneously used.
4.7.1 Termination by KDI. KDI may at any time and upon written notice to You immediately terminate this Agreement and Your access to the Service, or suspend or restrict Your access to the Service in whole or in part, if: (a) You materially breach this Agreement and do not cure such breach within fifteen (15) days of receiving written notice of the breach from KDI; (b) KDI determines in its sole and exclusive judgment that terminating Your access to the Service is advisable for security reasons, to protect KDI from liability, or for the continued normal and efficient operation of the Service.
4.7.2 Termination By You. You may terminate this Agreement or Your Subscription to the Service with respect to each Subscription Term by contacting KDI customer service or by visiting the "Account" area of the Service if: (a) KDI materially breaches this Agreement and does not cure such breach within fifteen (15) days, and You may be entitled to a prorated refund of any prepaid fees for the remaining balance of the applicable Subscription Term; (b) at any time for any reason or no reason, but without refund of any prepaid fees for the remaining balance of each such applicable Subscription Term.
4.7.3 Effect of Termination. Upon termination of this Agreement, You must immediately cease using the applicable Service. KDI reserves the right to delete any data files associated with Content, Information, or Your or use of the Service upon termination of the Service. The Disclaimers of this Agreement shall survive termination of this Agreement.
4.8 Disclaimer of Subscriptions
4.8.1 SUBSCRIPTION SERVICE AGREEMENT. THIS SUBSCRIPTION SERVICE AGREEMENT IS BETWEEN KDI (DEFINED ABOVE) AND "YOU" (COLLECTIVELY, THE "PARTIES"). BY USING THE SERVICE (DEFINED ABOVE), (A) YOU AGREE THAT CALIFORNIA LAW GOVERNS YOUR USE OF THE SERVICE, AND (B) TO THE TERMS REGARDING GOVERNING LAW AND VENUE SET FORTH IN THE RELEVANT SECTION (GOVERNING LAW).
YOU AGREE THAT THIS AGREEMENT (DEFINED ABOVE) IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY ON WHOSE BEHALF THE SERVICE IS USED: FOR EXAMPLE, YOUR EMPLOYER. YOU MAY HAVE ANOTHER WRITTEN AGREEMENT DIRECTLY WITH KDI THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS AGREEMENT
These Terms and Conditions for K&D Interactive Partners (the "Agreement"), by and between the entity purchasing a KDI server ("Partner") and K&D Interactive Inc. ("we", "us" or "KDI"), apply solely to the server purchased. The Software running on the Servers is licensed, not sold, only in accordance with these terms.
5.1 Eligibility. The Partner must meet the following eligibility requirements in order to offer Your Server in production mode for the Users. You must: (a) to the extent you have a paid License; (b) have a valid Partner account with KDI; and (c) meet any other eligibility requirements specified in the Terms of Service on the KDI Site.
5.2 License. Subject to the terms and conditions of the Agreement, KDI grants to You a non-exclusive, non-transferable, revocable license to install and use the Server solely in conjunction with Your rights to operate and use the Service in accordance with the applicable License validity. You shall not modify, port, adapt or translate the Server. You shall not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Server. You can use the Server on a timeshare or service bureau basis or host, on a subscription basis or otherwise, or use the Server to utilize any functionality of the Service for a third party.
5.3 License keys. Unless otherwise specifically limited in the Sales Order, Server passwords and login IDs for the Services will be provided to Partner in an amount mutually agreed upon by Partner and KDI. The Partner is solely responsible for safekeeping the provided credentials and must take steps to prevent unauthorized access to its login IDs and passwords, and must not allow the use of the same login ID simultaneously by two or more Server instances.
5.4 Verification. We may require you to provide additional registration information to verify your identity. This information may include your social security number or employer identification number (EIN), valid U.S. credit card, a verified U.S. bank account, or other financial, business or personal information. We may make, directly or through third parties, any inquiries we consider necessary to validate information that you provide to us, including checking commercial databases. You authorize us to obtain one or more of your credit reports to establish, update, or renew your account with us or in the event of a dispute relating to this Agreement and activity under your account.
5.5 Delivery. Servers are deemed to be delivered and accepted by Partners on the earlier of the date the Server is made available for electronic download or, if applicable, the date that KDI ships the tangible media (e.g., USB drive, CD or DVD) containing the Server Software as a disk image. Servers are deemed to be delivered and accepted on the License Term start date.
5.6 Ownership. Partner retains the copyright to their own intellectual property and owns the User Data and User Content of their Server, subject to KDI's underlying intellectual property in the KDI Software. KDI owns the KDI Software and Technology.
5.7 License to Documentation. Partner may make and distribute copies of the Documentation for use by Users in connection with use of the Server in accordance with this Agreement, but no more than the amount reasonably necessary. Any permitted copy of the Documentation must contain the same copyright and other proprietary notices that appear in the Documentation.
5.8 Charges. Your Server will be purchased with a one-time fee and no montly playments. Your financial details will be used to be charged the fees stated at the time of purchase plus applicable taxe. Your Partnership will start as soon as the initial fee is successfully charged and will renew automatically each year until you cancel your Partnership. No refunds are accepted after purchase. You may cancel your Partnership at any time by contacting KDI's Customer Support. Price of the entry fee for becoming a Partner may change at the end of your Partnership period, in which case you'll have to apply with the updated price to be re-instated as a Partner.
5.9 Changes. Notwithstanding anything in this Agreement to the contrary, we may update or change the terms of this Agreement upon notice to you, including by posting updated terms on the KDI Site, except that we will provide you with 30 days prior written notice (which may be via email) of any changes which may cause you to be in noncompliance with the terms of this Agreement.
5.10 No Modifications. Partner must not modify, create derivative works of, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code in, any KDI Software. These restrictions will not apply to the extent they limit any non-waivable right Partners may enjoy under applicable law.
5.11.1 Trial Use. If You have received the Server on a trial basis, then in addition to the other terms of this Agreement, as a trial user of a Server, Your right to access and use the Server is limited as provided in the related communication from KDI acknowledging Your right to use the Server, or as provided in the Web pages describing trial use of the Server. This trial Server might be offered by KDI at a later time with different features, for a fee, or not at all, as determined by KDI in its sole discretion. In order to maintain a consistent quality of service, KDI reserves the right to temporarily suspend trial access to the Server as needed.
5.11.2 Termination of Trial Service. Your right to use the Server on a trial basis shall terminate immediately upon expiration of the limited time period granted at the time You licensed the Server on a trial basis. In addition, KDI reserves the right, for any reason in its sole discretion without prior notice, to discontinue or suspend Your trial use, and to terminate Your trial account. Your rights and the rights of Users to access Content submitted to Your Server and processed by the Service shall terminate immediately upon termination of Your right to use the Server.
You may operate Your Server in production mode for commercial use, subject to the following terms.
5.12.1 Review of Operation. You must submit all domains of Your live Servers to KDI for review in accordance with the Terms of Service, and we may accept or reject it for any reason. You are responsible for evaluating and testing Your Server before releasing it to production to confirm that it complies with this Agreement and our Policies and operates properly with the web services offered by KDI. We may review and test Your Server at any time in the future, including for security-related concerns and to check the accuracy of descriptions and other materials included in Your Server. You will cooperate with our review and testing.
5.12.2 Responsibility for Your Server. You are responsible for Your Server. Subject to the terms of this Agreement, you will establish the pricing, rights and other terms governing subscribers' use of Your Server. The terms governing use of Your Server by Subscribers must be consistent with our terms for use of any Services offered by KDI that are used with Your Server, and our terms will control to the extent of any conflict. If you do not specify any rights for Your Server, you agree to operate Your Server to subscribers on the same terms that we operate Services offered by KDI to subscribers. You will ensure that all information about Your Server (including information about applicable fees) is, at all times, accurate, complete, not misleading, and in compliance with applicable law. As between You and KDI, You own all profit, entitlement, and interest in and to Your Server. Except as provided in this Agreement, KDI obtains no rights under this Agreement from you to Your Server.
5.12.3 Maintenance and Removal of Your Server. You will ensure that all software contained in Your Server is kept up-to-date with current Updates and Releases. You may remove Your Server from production mode at any time in accordance with the Terms of Service. We may also request You to remove Your Server from production mode at any time for any reason. Any removal by You or KDI of Your Server will apply to prospective Subscribers only and you will continue to enable current Subscribers to use Your Server until that Subscriber terminates their use. Notwithstanding anything in this Agreement to the contrary, We may terminate an existing Subscriber's use of Your Server in accordance with our Terms of Service.
5.12.4 Our Role. You will be the owner of record for Your Server. Except as expressly set forth in this Agreement, we are not involved in any underlying transaction between You and any Subscriber. We are not responsible for any dispute between You and any subscriber, but We may elect to assist in the resolution of any dispute between You and any subscriber if asked to do so by the subscriber. If we elect to assist in the resolution of a dispute, you agree to cooperate with us to resolve the dispute.
5.12.5 Fair Treatment of Subscribers. For Your Server released online in production mode, you must generally treat Subscribers at least as favorably as subscribers We service through the equivalent Service. Your Server must be offered to Subscribers on terms and conditions (including but not limited to price) at least as favorable to the same offering(s) on KDI's Service. For example, your total fees and charges for subscription to Your Server must not exceed the lowest total fees and charges KDI offers through the equivalent Service. You will provide all Updates and Releases of Your Server as soon as those updates or versions are made available through the Partner Channel.
5.12.6 Technical Support and Subscriber Service. You are solely responsible for technical support (if any) for Your Server. We have no obligation to provide Subscriber support or technical support to any Subscriber of Your Server.
5.12.7 Subscriber Information. You may use Subscriber Information only to communicate with Subscribers who acquire accounts in Your Server to provide technical support. You may not use Subscriber Information for any other purpose. For example, you may not, directly or indirectly: (a) disclose any Subscriber Information to any third party, except as necessary for you to perform your obligations under this Agreement and only if you ensure that every recipient uses the information only for that purpose and complies with any restrictions applicable to you; (b) use any Subscriber Information for any marketing or promotional purposes whatsoever; (c) use any Subscriber Information in any way inconsistent with applicable privacy policies or law; (d) contact a Subscriber to influence them to make an alternative purchase; (e) disparage us, our affiliates or any of their or our respective products; or (f) target communications of any kind on the basis of the intended recipient being a KDI User. This section does not prevent you from using other information that you acquire without reference to Subscriber Information for any purpose, even if that information is identical to Subscriber Information, as long as you do not target communications on the basis of the intended recipient being an KDI User.
5.12.8 Content Monitoring. You must implement a process through which infringing, abusive, or otherwise unlawful content can be reported to You and removed in accordance with applicable laws, regulations, rules, guidelines, codes, and industry best practices. If User Content is hosted by KDI, and You become aware of a possible violation regarding any User Content that is uploaded to the Server, You must promptly notify KDI. You acknowledge that although the Servers may be used to modify or edit User Content to be posted or integrated into Partner Sites on User's behalf, Partners: (A) retain complete control over each Partner Site and all User Content; and (B) remains fully responsible for ensuring that all Partner Sites used with the Servers and all User Content: (1) comply with all applicable laws, regulations, rules, guidelines, and codes; and (2) do not infringe any person's or entity's rights. You acknowledge and agree that nothing in this section prevents KDI from suspending services to comply with an applicable court order.
5.12.9 Processing of Transactions; Collection of Transaction Proceeds. We will not process any payments and refunds on your behalf for Transactions and collect the applicable Transaction Proceeds. We do not guarantee payment on behalf of any Subscribers. Except where you have enabled Subscribers to use an existing account to cover use of Your Server, You will ensure that all fees and charges payable by Subscribers for Your Server are billed and collected. We will not impose transaction limits on some or all Subscribers relating to the value of any Transaction or disbursement, the cumulative value of all Transactions or disbursements during a period of time or the number of Transactions per day or other period of time. We may initiate investigation on any of your Transactions that we suspect is fraudulent, unlawful or otherwise violates the terms of this Agreement or our Terms of Service.
5.12.10 Taxes. You are responsible for the calculation, validation and payment of any and all sales, use, excise, import, export, value added, withholding and other taxes and duties assessed, incurred or required to be collected ("Taxes") or paid for any reason in connection with any Transaction and with Your Server. We are not obliged to determine whether any Taxes apply to any Transaction, and we are not responsible for remitting Taxes to any taxing authority with respect to any Transaction, or for reporting any information (including the payment of Taxes) with respect to any Transaction. You will relieve Us and our affiliates against any Claim or demand for payment of any Taxes imposed in connection with any Transaction, and for any fines, penalties, or similar charges imposed as a result of your failure to collect, remit or report any Taxes in connection with any Transaction.
5.12.11 Cancellations and Refunds. Except where not required by the Terms of Service, You will post your cancellation and refund policy in the domain of Your Server. At a minimum, this cancellation and refund policy must: (a) allow Subscribers who Subscribe to Your Server through a Transaction to cancel on-going Subscriptions to Your Server; and (b) comply with the other requirements of this Agreement. You will accept and process cancellations of, and provide refunds and adjustments for, Your Server in accordance with this cancellation and refund policy posted at the time of the applicable Transaction.
5.13 Partner Rights
5.13.1 Grant. Subject to the terms of this Agreement, KDI grants Pertner, during the License Term, a nontransferable, non-exclusive, and worldwide license to: (1) permit Users to access the Server through the applicable interfaces; (2) install, implement, and use the Software on Servers or Devices as applicable; (3) use and distribute Reports internally within Partners's business, solely in connection with Partner's use of the Server for its internal operations. Nothing in this Agreement grants Pertner any express or implied license to use, distribute, modify, copy, link, or translate the Software, other than for Partners's use of the Server's Services.
5.13.2 Restrictions. Except as permitted under this Agreement, Customer must not: (a) copy, use, reproduce, distribute, republish, download, display, post or transmit the Services, Software or Reports; (b) sell, rent, lease, host, or sub-license the On-demand Services, the Distributed Code or the Reports; (c) make Customer's login IDs or passwords available to any third party; (d) use, modify, copy, link, translate, or reverse engineer the Software to enhance or enable the use of any third-party product or service; (e) remove, obscure, or alter any proprietary notices associated with the Services, Software, or Reports; or (f) use the On-demand Services, Distributed Code, or Reports in violation of any applicable law (including use on websites that contain unlawful material such as material that violates any obscenity, defamation, harassment, privacy, or intellectual property laws).
5.14.2 Sensitive Personal Data. Partners must not use the Servers to collect, process, or store any Information of its employees, users, partners, site visitors, or any third party. Partners must not transmit, disclose or make available sensitive Information to KDI or third-party providers.
5.14.3 Nondisclosure; Publicity. The Partners will comply with the terms of any nondisclosure agreement between them and KDI (or Our affiliates). If no such agreement exists, You and your representatives (a) will protect and keep confidential the existence of this Agreement, its terms and conditions and any other Information obtained from us in connection with this Agreement that is identified as confidential or proprietary or that, given the nature of the Information or the manner of its disclosure, reasonably should be considered confidential or proprietary (including but not limited to all information relating to our technology, customers, business plans, marketing activities and finances), (b) will use this information only for the purpose(s) for which it was originally disclosed and in any case only for the purpose of fulfilling your obligations under this Agreement, and (c) will return all Information to us promptly upon the termination of this Agreement. All Information will remain our exclusive property, and you will have no rights to use this Information except as expressly provided herein. You will not use any trade name, trademark, service mark, logo or commercial symbol, or any other proprietary rights of ours or any of our affiliates' in any manner without prior written authorization. You will not issue press releases or publicity relating to KDI or this Agreement or reference KDI or its affiliates in any brochures, advertisements, client lists or other promotional materials.
5.15 Risk of Loss. We will bear the risk of fraud associated with our sale or license of the web Services offered by KDI. You will bear all other risk of fraud or Loss, including the risk of chargebacks or credit card fraud associated with your sale or license of Your Server. If You receive a chargeback or determine a payment related to a Transaction was a result of fraud, then You solely will endure the Loss of the total amount of any Transaction proceeds previously paid to you, as well as all credit card association, bank or other payment processing, re-presentment and/or penalty fees associated with the original Transaction.
5.16 Marketing Restriction. You may not include in Your Server, any advertisements or promotions for, or opportunities for a Subscriber to purchase, products that you do not list explicitly in the homepage of Your Service. If you choose to market or make other references to the availability of Your Server, you must include a reference to the homepage of Your Service.
5.17 Notices. We will send all notices and other communications to you at the e-mail address registered under your KDI Partner account or the mailing address set forth above. You will send all notices and other communications relating to this Agreement to KDI through any means of communication provided in the Partner Channel.
5.18 Assignment. Neither KDI or Partners may assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement without the prior written approval of the other party; except that either party may assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement without the consent of the other party (a) in connection with a merger, acquisition or sale of all or substantially all of its assets, or (b) to any affiliate or as part of a corporate reorganization. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
5.19 Other Rights. You grant us a nonexclusive, worldwide license to: (a) reproduce, distribute, display, transmit, promote, and otherwise digitally make available (via all means of online and electronic distribution), Your Server domain(s) stated as a KDI Partner; and (b) display (i) your trademarks and logos in the form you provide them to us (with any modifications to optimize their viewing), and (ii) limited portions of Your Server (e.g. product description) in connection with marketing Your Server as a KDI Partner. We may permit our affiliates and independent contractors to exercise the rights that you grant to us in this Agreement. We assume all liability and responsibility for our affiliates' and independent contractors' compliance with, or breach of, the terms of this Agreement.
5.20 Export Rules. Customer acknowledges that the Servers may be subject to the U.S. Export Administration Regulations and other export laws and regulations, and Customer will comply with them. In connection with this Agreement, each party will comply with all applicable import, re-import, export, and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which the Subscriber(s) accesses and uses Your Server. You will not export or re-export the Server, directly or indirectly, to, or use (or enable any other user to use) the Server in connection with: (a) any countries that are subject to U.S. export restrictions (including, but not limited to, Cuba, Iran, North Korea, Sudan, and Syria), (b) any end user whom You know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems, or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government. In addition, You are responsible for complying with any local laws in Your jurisdiction which may impact its right to import, export or use the Server or Software. If KDI has knowledge that a violation has occurred, We may be prohibited from providing Maintenance and Support for the Server or Software.
5.21.1 Term and Termination. The term of this Agreement will commence on the Effective Date set forth on the Cover Page and will continue until terminated. Either party may terminate this Agreement for any or no reason by (a) providing 30 days' written notice to the other party or (b) immediately removing all Servers in accordance with these Terms of Service. We may advise existing Subscribers upon termination of this Agreement.
5.21.2 Process. Upon termination or expiration of this Agreement or any License Term for On-demand Services: (a) the license and associated rights for a Server granted to a Partner under this Agreement will immediately terminate; (b) Partner must, at its expense: (1) remove and delete all copies of the Server; and (2) remove all references and links to the Server from the Partner Sites; and (c) User Data and User Content stored within the Server will be available to Users for 30 days after the termination or expiration in the same format then available within the reporting interface(s). Any continued use of the Server or Service after termination or expiration of this Agreement constitutes a breach of this Agreement, and Partner will be liable for any fees for any Services that remain active after the termination or expiration. These fees will be invoiced to Partner at the rate set out in the Sales Order.
5.21.3 Support. Upon removal from production mode of Your Server, You will continue to provide support for Your Server to current Subscribers for at least 90 days following removal of the Server.
5.21.3 Survival. The termination or expiration of this Agreement will not affect any provisions of this Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, payment obligations, confidentiality, term and termination, effect of termination, intellectual property, license compliance, limitation of liability, privacy, content monitoring, and the "General Provisions" section in these Terms of Service.
6.2 Investigations. KDI does generally monitor user activity occurring in connection with its Products and Services. If KDI becomes aware of any possible violations by You of any provision of this Agreement, KDI reserves the right to investigate such violations and, at its sole discretion, (a) terminate immediately Your account to use the Service or (b) change, alter or remove Content, in whole or in part, without prior notice to You. If, as a result of such investigation, KDI believes that criminal activity has occurred, We reserve the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities.
6.3 Disclosures. KDI is entitled, except to the extent prohibited by applicable law, to disclose any information, including Information, about You in KDI's possession in connection with Your use of the Services, Products and Servers to law enforcement or other government officials, as KDI in its sole discretion believes to be necessary or appropriate. KDI will provide You with prior notice of any such disclosure where legally permissible.
7.1 General. You will defend, indemnify, and hold harmless Us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Loss, Claim, liability, damage, action or cause of action (including reasonable attorneys' fees) arising out of or relating to any third party claim concerning: (a) Your use of a Service, Product or Server; (b) alleged infringement or misappropriation of any third-party rights by Our Products, Services or Servers, or by the use, distribution, sale, development, design, production, advertising or marketing of Your Server; (c) a dispute between You and any Subscriber to Your Server; or (d) any royalties or payments due to any third parties as a result of this Agreement; (e) Your violation of these Terms of Service.
7.2 Process. We will promptly notify you of any claim, but our failure to promptly notify You will only affect your obligations to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as You deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
7.3 Third-party Claims. KDI will not defend any third-party Claim against Users and/or Partners during the License Term for infringes on third party trade secrets, patent, copyright, or trademark even if the Claim alleges the Service, Product or Server directly; or that KDI has misappropriated the third party's ("Claim"). KDI will have no liability including but not limited to any infringement Claim that arises from any use of the Software in violation of this Agreement, modification of the Software by anyone other than KDI or a party authorized in writing by KDI to modify specific code within the Software; failure by Partner to install the latest updated version of the Service as requested by KDI to avoid infringement; or third-party products, services, hardware, software, or other materials, or combination of these with Software if the Software would not be infringing without this combination;
7.4 Sole and Exclusive Remedy. The remedies in this section (Indemnification) are User's sole and exclusive remedies and KDI's sole liability regarding the subject matter giving rise to any Claim that the Products and Services infringe or misappropriate any third party's intellectual property rights.
8.1. Environmental hazards. The Software is not designed or licensed for use in hazardous environments requiring failsafe controls. KDI, its affiliates, suppliers, licensors, and resellers specifically disclaim any express or implied warranty of fitness for such purposes.
8.2. Data Retention. Customer Data may be permanently deleted from KDI's servers 48 months from the date of its collection or receipt.
8.3. Third Party Software Notices. In order to accommodate public demand for software that is interoperable with other products and platforms, KDI, like other commercial software publishers, has designed its products to comply with public standards, and has incorporated code created and licensed by third parties, into its products. The creators of these public standards and publicly available code, as well as other third party licensors, make the third-party software available subject to additional terms and conditions.Your use of KDI's Software in Products, Services and Servers will be governed by their respective applicable license terms, where applicable.
8.4 Links. KDI may provide links to other websites or resources as part of the Products, Services or Servers as a convenience to You. KDI has not reviewed all of the sites linked to its Services, Products or Servers and is not responsible for the contents of any such third party site. The inclusion of any link does not imply endorsement by KDI of the site. You may visit such third party sites solely at Your own risk.
8.5 Revisions and Errata. The materials appearing on KDI's Products, Services and Servers could include technical, typographical, or photographic errors. KDI does not warrant that any of the materials are accurate, complete, or current. KDI may make changes to the materials contained on its web site at any time without notice. KDI does not, however, make any commitment to update the materials.
8.6 Logos. In relation to distributed rights mentioned above, you may use an approved logo provided by us, in compliance with any trademark usage guidelines we have specified in the Agreement or in explicitly specify.
9. Governing Law
9.1 By accessing and using the Service, Product or Server You and KDI agree that all matters relating to this Agreement and Your access to, or use of, the Software shall be governed by and construed in accordance with the substantive laws in force in the State of California without regard to its conflict of law provisions. You are solely responsible for Your familiarity and compliance with any laws that may prohibit You from participating in or using any part of a Service, Product or Server offering. If any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of KDI, and all other provisions will remain in full force and effect.
9.2 Any dispute relating in any way to this Agreement will only be adjudicated in a state or federal court located in San Francisco, California. Each party consents to exclusive jurisdiction and venue in these courts. Notwithstanding the foregoing, either Party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party's, its affiliates or any third party's intellectual property or other proprietary rights. This Agreement will not be governed by the conflict of law rules of any jurisdiction, UCITA, or the United Nations Convention on Contracts for the International Sale of Goods, the application of which are expressly excluded.
10.2 No Waivers. The failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit such party's right to enforce such provision at a later time. All waivers by a party must be in writing to be effective.
10.3 No Agency. Non-Exclusive Rights. Nothing in this Agreement is intended to constitute a fiduciary relationship, agency, joint venture, partnership, or trust between the Parties. No Party has authority to bind the other Party. The parties to this Agreement are independent contractors, and neither party, or any of their respective affiliates, is an agent of the other for any purpose. Each User and Partner reserves the right (a) to develop or have developed for their own Products, Services, concepts, systems, or techniques that are similar to or compete with the Products, Services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer Products or Services which compete with the other party's Products or Services.
10.4 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
10.5 Counterparts; Facsimile. This Agreement may be executed by facsimile and in counterparts, each of which (including signature pages) will be deemed an original, but all of which together will constitute one and the same instrument.
10.6 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any Accident beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outage, utilities or telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
10.7 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a Partner in this Agreement.
11. Disclaimers; Limitations of Liability
11.1.1 DISCLAIMER OF WARRANTIES. ANY SERVICE, PRODUCT AND SERVER ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE BASIS" "WITH ALL FAULTS" AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS MAY BE EXPRESSLY SET FORTH OTHERWISE IN THIS AGREEMENT, KDI, ITS AFFILIATES, CONTRACTORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, RESELLERS, LICENSORS, AND ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES, PRODUCTS AND THE SERVERS DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING ALL SERVICES, PRODUCTS, OR SERVERS PROVIDED BY OR ON BEHALF OF KDI IN CONNECTION WITH THIS AGREEMENT. TO THE FULL EXTENT PERMITTED BY LAW, WE, OUR AFFILIATES AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, LIKELY RESULTS, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, NON-INFRINGEMEN, OR THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED; INCLUDING ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
11.1.2 WITHOUT LIMITING THE FOREGOING, KDI DOES NOT WARRANT OR REPRESENT THAT THE SERVICE, PRODUCT OR SERVER WILL BE CONTINUOUS, SECURE, RELIABLE, ACCESSIBLE, UNINTERRUPTED OR ERROR-FREE, OR THAT KDI'S SERVICES, PRODUCTS, SERVERS AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT KDI'S SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS OR ALTERATION OF OR IMPROPER ACCESS TO INFORMATION OR CONTENT BY THIRDPARTIES, EVEN IF KDI OR A KDI AUTHORIZED REPRESENTATIVE HAS BEEN NOTIFIED ORALLY OR IN WRITING OF THE POSSIBILITY OF SUCH DAMAGE.
11.1.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
11.2 Limitation of Liability
11.2.1 NEITHER KDI NOR ITS AFFILIATES SHALL BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, INDIRECT, MORAL, PUNITIVE, COVER, EXEMPLARY OR CONSEQUENTIAL DAMAGES; INCLUDING, BUT NOT LIMITED TO, DAMAGES ASSOCIATED WITH: ACCESS OF DATA, INFORMATION OR CONTENT; LOSS OF BUSINESS; LOSS OF PROFITS, REVENUE OR GOODWILL; BUSINESS INTERRUPTION; LOSS OR CORRUPTION OF DATA; UNAVAILABILITY OR NON-PERFORMANCE OF ANY OR ALL OF THE PRODUCTS OFFERED BY KDI; INVESTMENTS, EXPENDITURES OR COMMITMENTS RELATED TO USE OR ACCESS TO THE SERVICES OFFERED BY KDI; UNAUTHORIZED ACCESS TO, COMPROMISE, ALTERATION OR LOSS OF YOUR CONTENT, INCLUDING REPLACEMENT COSTS; OR THE LIKE, ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE AND BASED ON ANY THEORY OF LIABILITY INCLUDING STATUTE, BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF KDI OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11.2.2 DAMAGES CAP. KDI'S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICE, PRODUCT OR SERVER IN THE LAST TWELVE (12) MONTHS, IF ANY. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. KDI'S AFFILIATES SHALL HAVE NO LIABILITY TO YOU FOR ANY REASON.
11.2.3 THE LIMITATIONS ON LIABILITY IN THIS SECTION ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. NOTHING CONTAINED IN THIS AGREEMENT LIMITS KDI'S LIABILITY TO YOU IN THE EVENT OF DEATH OR PERSONAL INJURY RESULTING FROM KDI'S GROSS NEGLIGENCE.