Terms of Service
Kendall Terms of Service Agreement
These Terms of Service (“Terms of Service”), together with our Acceptable
Use Policy, Data Processing Agreement, any Service Order (as defined below)
and, if applicable, our API Terms of Use, collectively constitute a binding
agreement (the “Agreement”) between Kendall Square, Inc., a Delaware
Corporation (“Kendall”) and you or the legal entity you represent
(“Customer” or “you“), and is made effective on the date of electronic
acceptance.
Use Policy, Data Processing Agreement, any Service Order (as defined below)
and, if applicable, our API Terms of Use, collectively constitute a binding
agreement (the “Agreement”) between Kendall Square, Inc., a Delaware
Corporation (“Kendall”) and you or the legal entity you represent
(“Customer” or “you“), and is made effective on the date of electronic
acceptance.
Customer’s continued use of the Kendall site and/or the Services (as defined
below) constitutes Customer’s acknowledgment and acceptance of these
terms. Should Customer have any questions about these Terms of Service or
the Services, or would like to report violations of these Terms of Service,
please contact Kendall Support at team@Kendall.com.
below) constitutes Customer’s acknowledgment and acceptance of these
terms. Should Customer have any questions about these Terms of Service or
the Services, or would like to report violations of these Terms of Service,
please contact Kendall Support at team@Kendall.com.
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS
YOUR USE OF THE SERVICES. BY CLICKING ON THE “CREATE ACCOUNT”
BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR
USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ,
UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE
OF LEGAL AGE TO FORM A BINDING CONTRACT WITH KENDALL (3) THE
INFORMATION YOU PROVIDED IN CONNECTION WITH YOUR REGISTRATION
FOR THE SERVICES IS ACCURATE AND COMPLETE, AND (4) YOU HAVE THE
AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF
OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT
COMPANY TO THE AGREEMENT. THE TERM “YOU” OR “USER” REFERS TO THE
INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER
WHEN YOU REGISTERED FOR THE SERVICES. YOU FURTHER REPRESENT AND
WARRANT THAT YOU AND YOUR AUTHORIZED USER(S) (OR THE ENTITY YOU
REPRESENT) ARE NOT ON THE UNITED STATES DEPARTMENT OF TREASURY,
OFFICE OF FOREIGN ASSET CONTROLS LIST OF SPECIALLY DESIGNATED
NATIONAL AND BLOCKED PERSONS AND ARE NOT OTHERWISE A PERSON OR
ENTITY TO WHOM KENDALL IS LEGALLY PROHIBITED TO PROVIDE THE
SERVICES.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT OR DO NOT MEET
THE CONDITIONS DESCRIBED HEREIN, YOU MUST NOT ACCESS OR USE THE
SERVICES.
DEFINITIONS. Capitalized terms shall have the meanings set forth in this
section, or in the section where they are first used.
YOUR USE OF THE SERVICES. BY CLICKING ON THE “CREATE ACCOUNT”
BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR
USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ,
UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE
OF LEGAL AGE TO FORM A BINDING CONTRACT WITH KENDALL (3) THE
INFORMATION YOU PROVIDED IN CONNECTION WITH YOUR REGISTRATION
FOR THE SERVICES IS ACCURATE AND COMPLETE, AND (4) YOU HAVE THE
AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF
OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT
COMPANY TO THE AGREEMENT. THE TERM “YOU” OR “USER” REFERS TO THE
INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER
WHEN YOU REGISTERED FOR THE SERVICES. YOU FURTHER REPRESENT AND
WARRANT THAT YOU AND YOUR AUTHORIZED USER(S) (OR THE ENTITY YOU
REPRESENT) ARE NOT ON THE UNITED STATES DEPARTMENT OF TREASURY,
OFFICE OF FOREIGN ASSET CONTROLS LIST OF SPECIALLY DESIGNATED
NATIONAL AND BLOCKED PERSONS AND ARE NOT OTHERWISE A PERSON OR
ENTITY TO WHOM KENDALL IS LEGALLY PROHIBITED TO PROVIDE THE
SERVICES.
IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT OR DO NOT MEET
THE CONDITIONS DESCRIBED HEREIN, YOU MUST NOT ACCESS OR USE THE
SERVICES.
DEFINITIONS. Capitalized terms shall have the meanings set forth in this
section, or in the section where they are first used.
1.1. “Authorized User” means any individual who is an employee of Customer
or an affiliate, partner, service provider or such other person or entity as may
be authorized by Customer to access the Services pursuant to Customer’s
rights under this Agreement. For the avoidance of doubt, Customer, as
described herein, shall collectively mean and include “Authorized User”
where applicable.
1.2. “Customer Communications” means communications sent via the
Services, including emails, SMS and MMS messages, communications
through websites and transactions, and other similar communications.
1.3. “Customer Data” means any data, information, programs, and other
content provided or transmitted by Customer or its Authorized Users to the
Services, including, without limitation, Customer Marketing Content and
personal data, including personal data of end customers and prospects.
1.4. “Customer Marketing Content” means trademarks, trade names, service
marks, slogans, logos, other source identifiers, and marketing and
promotional content, including content in Customer Communications
provided or transmitted by Customer or its Authorized Users to the Services
in connection with the advertising, promotion, and sale of products and
services.
1.5. “Documentation” means written information (whether contained in user
or technical manuals, training materials, specifications or otherwise, whether
in paper, electronic or other written form) regarding the Services that are
made available by Kendall to Customer online or in any other manner.
1.6. “Intellectual Property Rights” means any and all intellectual property,
industrial property, and other proprietary rights throughout the world,
including all rights in, to, or arising out of patents, patent applications,
inventions (whether patentable or not), invention disclosures, trade secrets,
know-how, proprietary information, works of authorship, copyrights, mask
works, moral rights, trademarks, service marks, software, data, technology,
layout designs and design rights, and all registrations, applications,
renewals, extensions, or reissues of any of the foregoing.
1.7. “Services” means the Kendall app and its affiliated platforms made
generally available to and subscribed by Customer in a Service Order,
including any and all materials, data, content, and goods furnished
subscribed, provided, or otherwise produced through such app and
platforms.
1.8. “Service Order” means any communication, online or offline, written or
oral, provided by Kendall evidencing the initial designation of the Service by
the Customer and any subsequent orders to purchase the Services.
where applicable.
1.2. “Customer Communications” means communications sent via the
Services, including emails, SMS and MMS messages, communications
through websites and transactions, and other similar communications.
1.3. “Customer Data” means any data, information, programs, and other
content provided or transmitted by Customer or its Authorized Users to the
Services, including, without limitation, Customer Marketing Content and
personal data, including personal data of end customers and prospects.
1.4. “Customer Marketing Content” means trademarks, trade names, service
marks, slogans, logos, other source identifiers, and marketing and
promotional content, including content in Customer Communications
provided or transmitted by Customer or its Authorized Users to the Services
in connection with the advertising, promotion, and sale of products and
services.
1.5. “Documentation” means written information (whether contained in user
or technical manuals, training materials, specifications or otherwise, whether
in paper, electronic or other written form) regarding the Services that are
made available by Kendall to Customer online or in any other manner.
1.6. “Intellectual Property Rights” means any and all intellectual property,
industrial property, and other proprietary rights throughout the world,
including all rights in, to, or arising out of patents, patent applications,
inventions (whether patentable or not), invention disclosures, trade secrets,
know-how, proprietary information, works of authorship, copyrights, mask
works, moral rights, trademarks, service marks, software, data, technology,
layout designs and design rights, and all registrations, applications,
renewals, extensions, or reissues of any of the foregoing.
1.7. “Services” means the Kendall app and its affiliated platforms made
generally available to and subscribed by Customer in a Service Order,
including any and all materials, data, content, and goods furnished
subscribed, provided, or otherwise produced through such app and
platforms.
1.8. “Service Order” means any communication, online or offline, written or
oral, provided by Kendall evidencing the initial designation of the Service by
the Customer and any subsequent orders to purchase the Services.
MODIFICATION TO THE AGREEMENT.
Kendall may amend the Agreement from time to time due to changes to the
Services, to account for developments under the law, or for any other
reason. When material modifications are made, Kendall may (and where
required by law, will) send an email to you at the last email address you
provided to us pursuant to the Agreement to provide an updated copy of the
Agreement. Kendall may require you to provide consent to the updated
Agreement in a specified manner before further use of the Services is
permitted. If you do not agree to any change(s) after receiving a notice of
such change(s), you shall stop using the Services. Otherwise, your continued
use of the Services constitutes your acceptance of such change(s). PLEASE
REGULARLY CHECK KENDALL’S WEBSITE TO VIEW THE THEN-CURRENT
TERMS.
reason. When material modifications are made, Kendall may (and where
required by law, will) send an email to you at the last email address you
provided to us pursuant to the Agreement to provide an updated copy of the
Agreement. Kendall may require you to provide consent to the updated
Agreement in a specified manner before further use of the Services is
permitted. If you do not agree to any change(s) after receiving a notice of
such change(s), you shall stop using the Services. Otherwise, your continued
use of the Services constitutes your acceptance of such change(s). PLEASE
REGULARLY CHECK KENDALL’S WEBSITE TO VIEW THE THEN-CURRENT
TERMS.
PROVISION OF SERVICES
3.1. Access. Subject to the terms and conditions of this Agreement, Kendall
grants Customer a non-exclusive, non-transferable, non-sublicensable,
revocable right to access and use the Services during the Term (as defined
below). Customer may permit its Authorized Users to use the Services
provided that Customer shall be responsible for each Authorized User’s
compliance with and breach of the Agreement.
3.2. Restrictions. Customer will not, and will not permit any Authorized User
or other party to: (a) modify, adapt, alter, translate, or create derivative
works of the Services; (b) sublicense, lease, rent, loan, distribute, or
otherwise transfer the Services or Documentation to any third party; (c)
reverse engineer, decompile, disassemble, or otherwise derive or determine
or attempt to derive or determine the source code (or the underlying ideas,
algorithms, structure or organization) of the Services, except to the extent
expressly permitted by applicable law (and then only upon advance written
notice to Kendall); (d) bypass, delete, or disable any copy protection or
security mechanisms of the Services; (e) use or demonstrate the Services in
any other way that is in competition with Kendall; (f) remove any notice of
proprietary rights from the Services; (g) attempt to gain unauthorized access
to, or disrupt the integrity, performance or security of the Services or the
data contained therein; (h) use or copy the Services or Documentation,
except as expressly allowed herein or (i) use the Services in violation of the
Acceptable Use Policy. Kendall shall have the right, but not the obligation, to
review and monitor all use of the Services to ensure compliance with the
terms and conditions of this Agreement.
3.3. Downtime. Customer acknowledges that access to and use of the
Services may be suspended for the duration of any scheduled or
unscheduled downtime or unavailability of any portion or all of the Services
for any reason, including as a result of power outages, system failures or
other interruptions, or any other acts, omissions or failures on the part of
3.1. Access. Subject to the terms and conditions of this Agreement, Kendall
grants Customer a non-exclusive, non-transferable, non-sublicensable,
revocable right to access and use the Services during the Term (as defined
below). Customer may permit its Authorized Users to use the Services
provided that Customer shall be responsible for each Authorized User’s
compliance with and breach of the Agreement.
3.2. Restrictions. Customer will not, and will not permit any Authorized User
or other party to: (a) modify, adapt, alter, translate, or create derivative
works of the Services; (b) sublicense, lease, rent, loan, distribute, or
otherwise transfer the Services or Documentation to any third party; (c)
reverse engineer, decompile, disassemble, or otherwise derive or determine
or attempt to derive or determine the source code (or the underlying ideas,
algorithms, structure or organization) of the Services, except to the extent
expressly permitted by applicable law (and then only upon advance written
notice to Kendall); (d) bypass, delete, or disable any copy protection or
security mechanisms of the Services; (e) use or demonstrate the Services in
any other way that is in competition with Kendall; (f) remove any notice of
proprietary rights from the Services; (g) attempt to gain unauthorized access
to, or disrupt the integrity, performance or security of the Services or the
data contained therein; (h) use or copy the Services or Documentation,
except as expressly allowed herein or (i) use the Services in violation of the
Acceptable Use Policy. Kendall shall have the right, but not the obligation, to
review and monitor all use of the Services to ensure compliance with the
terms and conditions of this Agreement.
3.3. Downtime. Customer acknowledges that access to and use of the
Services may be suspended for the duration of any scheduled or
unscheduled downtime or unavailability of any portion or all of the Services
for any reason, including as a result of power outages, system failures or
other interruptions, or any other acts, omissions or failures on the part of
Kendall. In addition, from time to time, Kendall may update the software
associated with its Services, including but not limited to, (a) to maintain PCI
compliance; (b) to fix software bugs or errors; (c) to enhance existing
functionality or features that promote customer experience and increase
access security; (d) and/or expand existing or develop new product or
service offerings. Kendall makes no warranty that such updates will not affect
Customer’s use of the Services or introduce new but unknown errors into the
software. Further, Kendall shall not be responsible for the effect an update
may have on any Service provided by Kendall and any modifications that
could adversely impact Kendall’s Services to Customer. Where support is
provided by Kendall, Kendall will provide technical support for the most
recent update or version of the Software associated with the Service. From
time to time, Kendall may provide support for an older version(s), however
Kendall reserves the right to suspend or terminate such support at any time,
with or without notice.
3.4. Service Orders. Each Service Order is hereby incorporated into this
Agreement by reference and is subject to the terms and conditions of this
Agreement; provided, however, that in the event of a conflict with the terms
contained in any Service Order, the terms contained in this Agreement shall
control unless express reference to the superseded term in the Agreement is
set forth in the Service Order. Any terms and conditions that may be
contained in any acknowledgement, invoice, purchase order or other
Customer-provided form are specifically null and void.
3.5. Cooperation with Platform Partners. Cutsomer may use Kendall’s
Services to interact with Cutomer’s other partners or platforms (e.g.,
webshop or e-commerce platforms). If Customer chooses to integrate the
Services with those partners or platforms, Customer agrees that the
integration does not, and will not, conflict with the partner’s or platform’s
terms and conditions and privacy policies. Further, some partners or
platforms may require Customer or Kendall to provide certain Customer Data
that Kendall is processing on Customer’s behalf back to those platforms or
partners. In such cases, Kendall considers Customer’s request to integrate
with the partner or platform as Customer’s instruction to provide this data to
the partner or platform according to that partner’s or platform’s terms and
conditions. If Customer does not want this data to be provided to the partner
or platform, Customer should immediately request the suspension of the
integration with the respective partner or platform.
compliance; (b) to fix software bugs or errors; (c) to enhance existing
functionality or features that promote customer experience and increase
access security; (d) and/or expand existing or develop new product or
service offerings. Kendall makes no warranty that such updates will not affect
Customer’s use of the Services or introduce new but unknown errors into the
software. Further, Kendall shall not be responsible for the effect an update
may have on any Service provided by Kendall and any modifications that
could adversely impact Kendall’s Services to Customer. Where support is
provided by Kendall, Kendall will provide technical support for the most
recent update or version of the Software associated with the Service. From
time to time, Kendall may provide support for an older version(s), however
Kendall reserves the right to suspend or terminate such support at any time,
with or without notice.
3.4. Service Orders. Each Service Order is hereby incorporated into this
Agreement by reference and is subject to the terms and conditions of this
Agreement; provided, however, that in the event of a conflict with the terms
contained in any Service Order, the terms contained in this Agreement shall
control unless express reference to the superseded term in the Agreement is
set forth in the Service Order. Any terms and conditions that may be
contained in any acknowledgement, invoice, purchase order or other
Customer-provided form are specifically null and void.
3.5. Cooperation with Platform Partners. Cutsomer may use Kendall’s
Services to interact with Cutomer’s other partners or platforms (e.g.,
webshop or e-commerce platforms). If Customer chooses to integrate the
Services with those partners or platforms, Customer agrees that the
integration does not, and will not, conflict with the partner’s or platform’s
terms and conditions and privacy policies. Further, some partners or
platforms may require Customer or Kendall to provide certain Customer Data
that Kendall is processing on Customer’s behalf back to those platforms or
partners. In such cases, Kendall considers Customer’s request to integrate
with the partner or platform as Customer’s instruction to provide this data to
the partner or platform according to that partner’s or platform’s terms and
conditions. If Customer does not want this data to be provided to the partner
or platform, Customer should immediately request the suspension of the
integration with the respective partner or platform.
USE OF THE SERVICES
4.1. Setup Responsibilities. Customer shall be responsible for setting up and
configuring the Services, including without limitation any provisioning of
access to the Services to its Authorized Users. Customer shall be responsible
for obtaining and maintaining, at Customer’s expense, all of the necessary
4.1. Setup Responsibilities. Customer shall be responsible for setting up and
configuring the Services, including without limitation any provisioning of
access to the Services to its Authorized Users. Customer shall be responsible
for obtaining and maintaining, at Customer’s expense, all of the necessary
telecommunications, computer hardware, software, services and Internet
connectivity required by Customer or any Authorized User to access the
Services from the Internet. In the event that Kendall assists or advises
Customer with any Services setup, configuration or support, in no event shall
such assistance or advice be construed as legal advice.
4.2. Customer Account. Customer is solely responsible for protecting and
safeguarding Customer’s account and passwords and/or keys or other access
or security protocols that have been provided to Customer or that are
generated in connection with Customer’s use of the Services. Customer shall
use commercially reasonable efforts to prevent unauthorized access to or
use of its account and the Services. Customer is solely and fully responsible
for all activities, including accrued charges, that occur in connection with its
account and its use of the Services. In the event Customer believes
Customer’s account or the Services have been compromised, including any
unauthorized use or access of the Services or any other known or suspected
breach of security, Customer shall immediately notify Kendall by email to
privacy@Kendall.com, but in no event more than twenty-four (24) hours
following discovery of such breach.
4.3. Suspension, Limitation and Termination of Access. Kendall shall be
entitled, without liability to Customer, to immediately suspend, terminate or
limit Customer’s access to the Services at any time in the event that Kendall
determines, in its reasonable discretion, that (i) the Services are being used
by Customer, or its Authorized Users, in violation of any applicable laws or
regulations or this Agreement; (ii) the Services are being used by Customer
in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the
Services by Customer adversely affects Kendall’s equipment or service to
others; (iv) Kendall is prohibited by an order of a court or other governmental
agency from providing the Services; (v) there is a denial of service attack or
any other event which Kendall determines, in its sole discretion, may create
a risk to the Services or to any other customers if the Services were not
suspended; (vi) there is a security incident or other disaster that impacts the
Services or the security of the Services, Customer’s account or Customer
Data; or (vii) any amount due under this Agreement is not received by
Kendall within fifteen (15) days after it was due. Without limiting the
generality of this Section, Kendall shall have no liability for any damages,
liabilities or losses as a result of any suspension, limitation or termination of
Customer‘s right to use the Services pursuant to this Section 4.3.
Services from the Internet. In the event that Kendall assists or advises
Customer with any Services setup, configuration or support, in no event shall
such assistance or advice be construed as legal advice.
4.2. Customer Account. Customer is solely responsible for protecting and
safeguarding Customer’s account and passwords and/or keys or other access
or security protocols that have been provided to Customer or that are
generated in connection with Customer’s use of the Services. Customer shall
use commercially reasonable efforts to prevent unauthorized access to or
use of its account and the Services. Customer is solely and fully responsible
for all activities, including accrued charges, that occur in connection with its
account and its use of the Services. In the event Customer believes
Customer’s account or the Services have been compromised, including any
unauthorized use or access of the Services or any other known or suspected
breach of security, Customer shall immediately notify Kendall by email to
privacy@Kendall.com, but in no event more than twenty-four (24) hours
following discovery of such breach.
4.3. Suspension, Limitation and Termination of Access. Kendall shall be
entitled, without liability to Customer, to immediately suspend, terminate or
limit Customer’s access to the Services at any time in the event that Kendall
determines, in its reasonable discretion, that (i) the Services are being used
by Customer, or its Authorized Users, in violation of any applicable laws or
regulations or this Agreement; (ii) the Services are being used by Customer
in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the
Services by Customer adversely affects Kendall’s equipment or service to
others; (iv) Kendall is prohibited by an order of a court or other governmental
agency from providing the Services; (v) there is a denial of service attack or
any other event which Kendall determines, in its sole discretion, may create
a risk to the Services or to any other customers if the Services were not
suspended; (vi) there is a security incident or other disaster that impacts the
Services or the security of the Services, Customer’s account or Customer
Data; or (vii) any amount due under this Agreement is not received by
Kendall within fifteen (15) days after it was due. Without limiting the
generality of this Section, Kendall shall have no liability for any damages,
liabilities or losses as a result of any suspension, limitation or termination of
Customer‘s right to use the Services pursuant to this Section 4.3.
INTELLECTUAL PROPERTY
5.1. Ownership. Customer acknowledges and agrees that all rights, title and
interest in and to the Services, including any and all copyrightable materials
or any other content thereof which is or may be subject to any intellectual
property rights under any applicable law (e.g., source and object code,
5.1. Ownership. Customer acknowledges and agrees that all rights, title and
interest in and to the Services, including any and all copyrightable materials
or any other content thereof which is or may be subject to any intellectual
property rights under any applicable law (e.g., source and object code,
applications, designs, animations, interfaces, documentations, derivatives
and versions thereof, the “look and feel” of Kendall’s Services, methods,
products, algorithms, data, interactive features and objects, tools and
methods, inventions, trade secrets, logos, domains, customized URLs,
trademarks, service marks, trade names and other proprietary and
confidential data and identifiers, whether or not registered and/or capable of
being registered (collectively, “Intellectual Property”), and any derivations
thereof, the development of which required the expenditure of considerable
time and financial resources, are owned by and/or licensed to Kendall. All
rights in and to the Services not expressly granted to Customer in this
Agreement are reserved by Kendall and its service providers/vendors. Except
as expressly set forth herein, no express or implied license or right of any
kind is granted to Customer regarding the Services, or any part thereof,
including any right to obtain possession of any software, source code, data or
other technical material related to the Services.
5.2. Continuous Development. Consistent with Section 3.3 above, Customer
acknowledges that Kendall may continually develop, deliver and provide to
Customer ongoing innovation to the Services in the form of new features,
functionalities, and data offerings. Accordingly, Kendall reserves the right to
modify the Services from time to time. Some modifications will be provided
to Customer at no additional charge. In the event Kendall adds additional, or
modify existing, functionality to a particular Service, Kendall may condition
the implementation of such additions or modifications on Customer’s
payment of additional fees, provided that Customer may continue to use the
version of the Services that Kendall makes generally available (without such
additions or modifications) without paying additional fees.
5.3. Feedback. In the event that Customer or its Authorized Users provide
any comments or suggestions in connection with the Services, whether
written or oral (collectively, the “Feedback”), Kendall, in its sole discretion,
shall be entitled to use the Feedback without restriction or compensation,
and such Feedback will not be treated as confidential to Customer. Customer
hereby grants Kendall, on behalf of itself and its Authorized Users, a
worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and
license to incorporate the Feedback into Kendall products and services.
5.4. Aggregated Data. Kendall may collect and derive from Customer Data
aggregated data that does not identify Customer, any third-party entity or
any natural persons, and use and disclose such aggregated data for Kendall’s
legitimate business purposes, which may include but is not limited to
Services improvement, service and product development, and/or research
and marketing. Additionally, Kendall may collect and review Customer
Marketing Content to improve and enhance the Services and for other
development, diagnostic and corrective purposes.
products, algorithms, data, interactive features and objects, tools and
methods, inventions, trade secrets, logos, domains, customized URLs,
trademarks, service marks, trade names and other proprietary and
confidential data and identifiers, whether or not registered and/or capable of
being registered (collectively, “Intellectual Property”), and any derivations
thereof, the development of which required the expenditure of considerable
time and financial resources, are owned by and/or licensed to Kendall. All
rights in and to the Services not expressly granted to Customer in this
Agreement are reserved by Kendall and its service providers/vendors. Except
as expressly set forth herein, no express or implied license or right of any
kind is granted to Customer regarding the Services, or any part thereof,
including any right to obtain possession of any software, source code, data or
other technical material related to the Services.
5.2. Continuous Development. Consistent with Section 3.3 above, Customer
acknowledges that Kendall may continually develop, deliver and provide to
Customer ongoing innovation to the Services in the form of new features,
functionalities, and data offerings. Accordingly, Kendall reserves the right to
modify the Services from time to time. Some modifications will be provided
to Customer at no additional charge. In the event Kendall adds additional, or
modify existing, functionality to a particular Service, Kendall may condition
the implementation of such additions or modifications on Customer’s
payment of additional fees, provided that Customer may continue to use the
version of the Services that Kendall makes generally available (without such
additions or modifications) without paying additional fees.
5.3. Feedback. In the event that Customer or its Authorized Users provide
any comments or suggestions in connection with the Services, whether
written or oral (collectively, the “Feedback”), Kendall, in its sole discretion,
shall be entitled to use the Feedback without restriction or compensation,
and such Feedback will not be treated as confidential to Customer. Customer
hereby grants Kendall, on behalf of itself and its Authorized Users, a
worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and
license to incorporate the Feedback into Kendall products and services.
5.4. Aggregated Data. Kendall may collect and derive from Customer Data
aggregated data that does not identify Customer, any third-party entity or
any natural persons, and use and disclose such aggregated data for Kendall’s
legitimate business purposes, which may include but is not limited to
Services improvement, service and product development, and/or research
and marketing. Additionally, Kendall may collect and review Customer
Marketing Content to improve and enhance the Services and for other
development, diagnostic and corrective purposes.
FEES AND EXPENSES; PAYMENTS
6.1. Fees Generally. In consideration for the Services, Customer will pay
Kendall the then-current fees set forth in the “Account” section of Customer’s
account in the Services unless otherwise set forth in an applicable Service
Order (“Fees”). If Customer fails to pay any fees so due within ten (10) days
from the applicable due date for payments, Customer’s account shall be put
into a suspension. During this time, Customer’s access to the Services may
be restricted. If during this suspension period, Customer provides valid
payment information and pays the balance due in-full, Services will be
reinstated upon the processing of the new payment information. In addition,
Customer’s failure to fully pay any fees within ten (10) days after the
applicable due date will be deemed a material breach of this Agreement,
justifying Kendall’s suspension of its performance of the Services and/or
termination of this Agreement. Customer is responsible for any fees
associated with reinstatement of Services. Any such suspension or
termination would not relieve Customer from paying past due fees plus any
applicable interest as measured by interest rates set by the U.S. Department
of Trearsury. Kendall attempts to automatically charge the credit card on file
for any past due invoice for current, suspended and canceled accounts.
Accounts suspended and reactivated must pay all past due and current
amounts. Accounts past due over thirty (30) days may not be reactivated
unless agreed to by Kendall in its sole discretion. Otherwise, Customer must
sign up for new Services and pay all fees, including any setup fees, in full. If
a payment is returned or rejected by Kendall’s bank, or incurs additional
costs for Kendall (e.g., bank fees) for any reason, Customer may be charged
a service fee of $100.00 and be required to reimburse all such fees and costs
incurred by Kendall, and Customer shall be immediately deemed to be in
default of this Agreement. Accounts and all amounts in default are subject to
a late payment charge (as described in Section 6.3 below), or the maximum
amount permitted by law, whichever is greater, until fully paid.
6.2. Fee Increases. Kendall will provide Customer fourteen (14) days advance
notice for any increase in fees. Any increases to the Fees shall apply at the
beginning of the Customer’s following Term. Customer’s continued use of the
Services after a Fee increase will constitute Customer’s agreement to the
increase in Fees.
6.3. Billing, Invoicing, and Payment Terms. Kendall will charge Customer the
Fees for the Services in advance for each billing period on or after the first
day of such billing period. All Fees for Services are due and payable in US
Dollars and are non-refundable. If Customer is paying by credit card or
eCheck, (a) Customer hereby irrevocably authorizes Kendall to charge the
credit card or other payment method provided for any such amounts when
due, (b) amounts due will be automatically charged, (c) if Customer’s credit
card is declined, Kendall will attempt to reach out to Customer for a new
Kendall the then-current fees set forth in the “Account” section of Customer’s
account in the Services unless otherwise set forth in an applicable Service
Order (“Fees”). If Customer fails to pay any fees so due within ten (10) days
from the applicable due date for payments, Customer’s account shall be put
into a suspension. During this time, Customer’s access to the Services may
be restricted. If during this suspension period, Customer provides valid
payment information and pays the balance due in-full, Services will be
reinstated upon the processing of the new payment information. In addition,
Customer’s failure to fully pay any fees within ten (10) days after the
applicable due date will be deemed a material breach of this Agreement,
justifying Kendall’s suspension of its performance of the Services and/or
termination of this Agreement. Customer is responsible for any fees
associated with reinstatement of Services. Any such suspension or
termination would not relieve Customer from paying past due fees plus any
applicable interest as measured by interest rates set by the U.S. Department
of Trearsury. Kendall attempts to automatically charge the credit card on file
for any past due invoice for current, suspended and canceled accounts.
Accounts suspended and reactivated must pay all past due and current
amounts. Accounts past due over thirty (30) days may not be reactivated
unless agreed to by Kendall in its sole discretion. Otherwise, Customer must
sign up for new Services and pay all fees, including any setup fees, in full. If
a payment is returned or rejected by Kendall’s bank, or incurs additional
costs for Kendall (e.g., bank fees) for any reason, Customer may be charged
a service fee of $100.00 and be required to reimburse all such fees and costs
incurred by Kendall, and Customer shall be immediately deemed to be in
default of this Agreement. Accounts and all amounts in default are subject to
a late payment charge (as described in Section 6.3 below), or the maximum
amount permitted by law, whichever is greater, until fully paid.
6.2. Fee Increases. Kendall will provide Customer fourteen (14) days advance
notice for any increase in fees. Any increases to the Fees shall apply at the
beginning of the Customer’s following Term. Customer’s continued use of the
Services after a Fee increase will constitute Customer’s agreement to the
increase in Fees.
6.3. Billing, Invoicing, and Payment Terms. Kendall will charge Customer the
Fees for the Services in advance for each billing period on or after the first
day of such billing period. All Fees for Services are due and payable in US
Dollars and are non-refundable. If Customer is paying by credit card or
eCheck, (a) Customer hereby irrevocably authorizes Kendall to charge the
credit card or other payment method provided for any such amounts when
due, (b) amounts due will be automatically charged, (c) if Customer’s credit
card is declined, Kendall will attempt to reach out to Customer for a new
payment method, and (d) if Customer’s credit card expires, Customer hereby
gives Kendall permission to submit the credit card charge with a later
expiration date. If Kendall fails to resolve an issue with Customer resulting
from a credit card decline or expiration, Kendall may terminate the account
due to non-payment. Customer agrees to notify Kendall of all billing disputes
within fourteen (14) days of delivery of the billing statement or invoice, and
disputes not made within that time are waived. Late payments, including
those resulting from credit card declines, will accrue interest at a rate of one
and one-half percent (1.5%) per month, or the rate allowed by applicable
law, whichever is greater. If Kendall must initiate a collections process to
recover fees due and payable hereunder, then Kendall shall be entitled to
recover from Customer all costs associated with such collections efforts,
including but not limited to reasonable attorneys’ fees.
6.4. Taxes. The Fees are exclusive of all applicable sales, use, value-added
and other taxes, and all applicable duties, tariffs, assessments, export and
import fees, or other similar charges, and Customer will be responsible for
payment of all such taxes (other than taxes based on Kendall’s income),
fees, duties, and charges and any related penalties and interest, arising from
the payment of the Fees and the delivery of the Services. To the extent that
Kendall charges any of the aforementioned taxes, they are calculated using
the tax rates that apply based on the billing address provided by Customer.
Such amounts are in addition to the Fees and will be billed to Customer’s
authorized payment method. If Customer is exempt from payment of any
such taxes, Customer must provide Kendall with evidence of exemption. If
Customer is not charged any of the aforementioned taxes by Kendall,
Customer is responsible for determining if taxes are payable, and if so, self-
remitting such taxes to the appropriate tax authorities in Customer’s
jurisdiction. Customer will make all payments of Fees to Kendall free and
clear of, and without reduction for, any withholding taxes. Any such taxes
imposed on payments of fees to Kendall will be Customer’s sole
responsibility, and Customer will provide Kendall with official receipts issued
by the appropriate taxing authority, or such other evidence as Kendall may
reasonably request, to establish that such taxes have been paid. Customer
shall indemnify, defend, and hold Kendall harmless in connection with any
proceedings brought by any taxing authorities in connection with this
Agreement. If Kendall is required to pay any such taxes directly to any taxing
authorities on behalf of Customer, Customer agress to, upon receipt of
Kendall’s invoice, promptly reimburse Kendall for any such taxes paid by
Kendall. Any taxes not reimbursed by Customer will be treated as
Customer’s failure to pay fees under Section 6.1.
6.5. Expenses. If pre-approved by Customer in a Service Order, Customer
shall reimburse Kendall for reasonable out-of-pocket expenses (including
travel and living) incurred in performing its obligations for specific Services
expiration date. If Kendall fails to resolve an issue with Customer resulting
from a credit card decline or expiration, Kendall may terminate the account
due to non-payment. Customer agrees to notify Kendall of all billing disputes
within fourteen (14) days of delivery of the billing statement or invoice, and
disputes not made within that time are waived. Late payments, including
those resulting from credit card declines, will accrue interest at a rate of one
and one-half percent (1.5%) per month, or the rate allowed by applicable
law, whichever is greater. If Kendall must initiate a collections process to
recover fees due and payable hereunder, then Kendall shall be entitled to
recover from Customer all costs associated with such collections efforts,
including but not limited to reasonable attorneys’ fees.
6.4. Taxes. The Fees are exclusive of all applicable sales, use, value-added
and other taxes, and all applicable duties, tariffs, assessments, export and
import fees, or other similar charges, and Customer will be responsible for
payment of all such taxes (other than taxes based on Kendall’s income),
fees, duties, and charges and any related penalties and interest, arising from
the payment of the Fees and the delivery of the Services. To the extent that
Kendall charges any of the aforementioned taxes, they are calculated using
the tax rates that apply based on the billing address provided by Customer.
Such amounts are in addition to the Fees and will be billed to Customer’s
authorized payment method. If Customer is exempt from payment of any
such taxes, Customer must provide Kendall with evidence of exemption. If
Customer is not charged any of the aforementioned taxes by Kendall,
Customer is responsible for determining if taxes are payable, and if so, self-
remitting such taxes to the appropriate tax authorities in Customer’s
jurisdiction. Customer will make all payments of Fees to Kendall free and
clear of, and without reduction for, any withholding taxes. Any such taxes
imposed on payments of fees to Kendall will be Customer’s sole
responsibility, and Customer will provide Kendall with official receipts issued
by the appropriate taxing authority, or such other evidence as Kendall may
reasonably request, to establish that such taxes have been paid. Customer
shall indemnify, defend, and hold Kendall harmless in connection with any
proceedings brought by any taxing authorities in connection with this
Agreement. If Kendall is required to pay any such taxes directly to any taxing
authorities on behalf of Customer, Customer agress to, upon receipt of
Kendall’s invoice, promptly reimburse Kendall for any such taxes paid by
Kendall. Any taxes not reimbursed by Customer will be treated as
Customer’s failure to pay fees under Section 6.1.
6.5. Expenses. If pre-approved by Customer in a Service Order, Customer
shall reimburse Kendall for reasonable out-of-pocket expenses (including
travel and living) incurred in performing its obligations for specific Services
under such Service Order. All costs and expenses incurred by Customer in
connection with this Agreement are the sole responsibility of Customer.
CUSTOMER DATA AND RESPONSIBILITIES
7.1. Customer Data. Customer Data, and all worldwide Intellectual Property
Rights therein, is, as between Kendall and Customer, the exclusive property
of Customer. Customer grants Kendall and its affiliates a non-exclusive,
perpetual, sublicensable, transferable, worldwide, royalty-free and fully paid
license (during and after the service term) to process and use the Customer
Data as necessary for purposes of providing the Services and as otherwise
permitted in this Agreement, including without limitations, to improve and
enhance the Services and for other marketing, development, diagnostic and
corrective purposes in connection with the Services and other Kendall
product offerings. Customer warrants that Customer is the owner or legal
custodian of, or otherwise has the right and has or will obtain the necessary
permissions, valid consents and releases to lawfully transmit, store and use
all Customer Data in connection with the Services and to grant the rights
granted to Kendall under this Agreement.
7.2. Customer Personal Data. Kendall shall collect, use, disclose and
otherwise process Customer Personal Data (as defined in the Data Processing
Agreement), and safeguard the privacy, confidentiality and security of
Customer Personal Data in accordance with the requirements set forth in the
Data Processing Agreement, which is hereby incorporated into this
Agreement by reference. Not withstanding anything in this Agreement to the
contrary, Kendall shall have the right to collect and analyze data that does
not refer to or identify Customer or any Authorized User or de-identifies such
data and other information relating to the provision, use and performance of
various aspects of the Services and related systems and technologies
(including, without limitation, information concerning Customer Data and
data derived therefrom). Customer acknowledges and agrees that Kendall is
allowed to compile Aggregated Data (see Section 5.4 above) based on
Customer Data, Customer Persosnal Data, and non-customer data input into
the Services. In addition, Customer acknowledges that anonymous,
aggregate information, comprising financial information, account data, or
other available data that is collected through Customer’s use of the Services,
may be used by Kendall and our service providers/vendors to conduct certain
analytical research, performance tracking and benchmarking. Customer
agrees that Kendall is permitted to publish summary or aggregate results
relating to metrics comprised of research data, and distribute or license such
anonymous, aggregated research data for any purpose, including but not
limited to, helping to improve products and services and assisting in
troubleshooting and technical support, among others. Customer’s personally
identifiable information will not be distributed or shared with or sold to third
parties.
CUSTOMER DATA AND RESPONSIBILITIES
7.1. Customer Data. Customer Data, and all worldwide Intellectual Property
Rights therein, is, as between Kendall and Customer, the exclusive property
of Customer. Customer grants Kendall and its affiliates a non-exclusive,
perpetual, sublicensable, transferable, worldwide, royalty-free and fully paid
license (during and after the service term) to process and use the Customer
Data as necessary for purposes of providing the Services and as otherwise
permitted in this Agreement, including without limitations, to improve and
enhance the Services and for other marketing, development, diagnostic and
corrective purposes in connection with the Services and other Kendall
product offerings. Customer warrants that Customer is the owner or legal
custodian of, or otherwise has the right and has or will obtain the necessary
permissions, valid consents and releases to lawfully transmit, store and use
all Customer Data in connection with the Services and to grant the rights
granted to Kendall under this Agreement.
7.2. Customer Personal Data. Kendall shall collect, use, disclose and
otherwise process Customer Personal Data (as defined in the Data Processing
Agreement), and safeguard the privacy, confidentiality and security of
Customer Personal Data in accordance with the requirements set forth in the
Data Processing Agreement, which is hereby incorporated into this
Agreement by reference. Not withstanding anything in this Agreement to the
contrary, Kendall shall have the right to collect and analyze data that does
not refer to or identify Customer or any Authorized User or de-identifies such
data and other information relating to the provision, use and performance of
various aspects of the Services and related systems and technologies
(including, without limitation, information concerning Customer Data and
data derived therefrom). Customer acknowledges and agrees that Kendall is
allowed to compile Aggregated Data (see Section 5.4 above) based on
Customer Data, Customer Persosnal Data, and non-customer data input into
the Services. In addition, Customer acknowledges that anonymous,
aggregate information, comprising financial information, account data, or
other available data that is collected through Customer’s use of the Services,
may be used by Kendall and our service providers/vendors to conduct certain
analytical research, performance tracking and benchmarking. Customer
agrees that Kendall is permitted to publish summary or aggregate results
relating to metrics comprised of research data, and distribute or license such
anonymous, aggregated research data for any purpose, including but not
limited to, helping to improve products and services and assisting in
troubleshooting and technical support, among others. Customer’s personally
identifiable information will not be distributed or shared with or sold to third
parties.
7.3. Customer Responsibilities for Data and Security. Customer and its
Authorized Users shall have access to the Customer Data and shall be
responsible for all changes to and/or deletions of Customer Data and the
security of all passwords and other account information required in order to
access and use the Services. Customer shall have the ability to retrieve or
export Customer Data out of the Services using the self-service tools Kendall
makes available to the Customer. Customer is encouraged to make its own
back-ups of the Customer Data and is responsible for backing up such data.
Customer shall have the sole responsibility for the accuracy, quality,
integrity, legality, reliability, and appropriateness of all Customer Data and
the means by which Customer acquired Customer Data, and for the
adequate security, protection and backup of Customer’s Data. Customer
understands that the Services may store and backup files that are no longer
usable due to corruption from viruses, software malfunctions and other
causes, which might result in Customer restoring files that are no longer
usable.
7.4. Customer Communications. Customer shall comply with all applicable
laws and regulations applicable to Customer’s use of the Services, including
Customer Communications and Customer Marketing Content, which laws and
regulations shall include but not be limited to (a) any applicable laws that
govern online promotions, offers, gift cards, coupons, and/or gift certificates,
data privacy and protection, intellectual property, the sending of electronic
marketing messages and the sending of SMS and/or MMS text messages and
(b) laws and regulations that apply to commerce, in each jurisdiction in which
Customer will be sending marketing communications to a resident of the
jurisdiction. Customer acknowledges and agrees that Kendall (i) does not
control or monitor Customer Communications, or guarantee the accuracy,
integrity, security or quality of such Customer Communications and (ii) is not
responsible for obtaining any necessary consents or permissions from
recipients of Customer Communications. Upon request, Customer shall
provide reasonable proof of compliance with the provisions set forth in this
Section and Kendall shall have no obligation to provide Services where
Kendall reasonably believes that Customer has not so complied.
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
8.1. Mutual Representations and Warranties. Kendall and Customer each
represents and warrants that: (i) it has full corporate right, power, and
authority to enter into this Agreement and (ii) the execution of this
Agreement by and the performance of its obligations and duties hereunder
do not and will not violate any agreement to which it is a party or is
otherwise bound.
responsible for all changes to and/or deletions of Customer Data and the
security of all passwords and other account information required in order to
access and use the Services. Customer shall have the ability to retrieve or
export Customer Data out of the Services using the self-service tools Kendall
makes available to the Customer. Customer is encouraged to make its own
back-ups of the Customer Data and is responsible for backing up such data.
Customer shall have the sole responsibility for the accuracy, quality,
integrity, legality, reliability, and appropriateness of all Customer Data and
the means by which Customer acquired Customer Data, and for the
adequate security, protection and backup of Customer’s Data. Customer
understands that the Services may store and backup files that are no longer
usable due to corruption from viruses, software malfunctions and other
causes, which might result in Customer restoring files that are no longer
usable.
7.4. Customer Communications. Customer shall comply with all applicable
laws and regulations applicable to Customer’s use of the Services, including
Customer Communications and Customer Marketing Content, which laws and
regulations shall include but not be limited to (a) any applicable laws that
govern online promotions, offers, gift cards, coupons, and/or gift certificates,
data privacy and protection, intellectual property, the sending of electronic
marketing messages and the sending of SMS and/or MMS text messages and
(b) laws and regulations that apply to commerce, in each jurisdiction in which
Customer will be sending marketing communications to a resident of the
jurisdiction. Customer acknowledges and agrees that Kendall (i) does not
control or monitor Customer Communications, or guarantee the accuracy,
integrity, security or quality of such Customer Communications and (ii) is not
responsible for obtaining any necessary consents or permissions from
recipients of Customer Communications. Upon request, Customer shall
provide reasonable proof of compliance with the provisions set forth in this
Section and Kendall shall have no obligation to provide Services where
Kendall reasonably believes that Customer has not so complied.
REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
8.1. Mutual Representations and Warranties. Kendall and Customer each
represents and warrants that: (i) it has full corporate right, power, and
authority to enter into this Agreement and (ii) the execution of this
Agreement by and the performance of its obligations and duties hereunder
do not and will not violate any agreement to which it is a party or is
otherwise bound.
8.2. Customer Representations and Warranties. Customer represents and
warrants that: (i) Customer has a legally sufficient privacy policy that is
made available to end customers and prospects prior to their provision of
any Customer Personal Data to Customer or Kendall; (ii) the Customer Data
and use of the Customer Data (a) will not infringe, misappropriate, or
otherwise violate the Intellectual Property Rights or other rights of any third
party, (b) will not constitute defamation, invasion of privacy or publicity, or
otherwise violate any similar rights of any third party, and (c) will not be
used in any illegal activity or promote illegal activities, including, without
limitation, in a manner that might be illegal or harmful to any person or
entity; (iii) it will not distribute, share, or facilitate the distribution of
unauthorized data, malware, viruses, Trojan horses, spyware, worms, or
other malicious or harmful code; and (iv) Customer will comply with and will
at all times honor the terms and conditions of any on-line coupon or similar
marketing offer, deal or advertisement to market Customer’s products and
services offered or otherwise promoted via the Services.
8.3. Limited Warranty. Kendall warrants that the Services, when used in
accordance with the terms of this Agreement, will perform substantially in
accordance with the Documentation during the term of this Agreement. The
foregoing warranty shall not apply to performance issues of the Services
resulting from (i) content provided by or passed through Customer or third
parties in connection with the Services (including Customer Data and/or
Customer Personal Data); (ii) Customer’s data structures, operating
environment, equipment or other technology; (iii) the use or combination of
the Services with any other software, services or hardware not supported by
Kendall; (iv) causes external to the Services, such as problems with the
hardware, network or other infrastructure with which the Services are used;
(v) unauthorized or improper use of the Services; (vi) any modification of the
Services by Customer or its Authorized Users; or (vii) third party components
incorporated into the Services, including open source software. Provided that
Customer notifies Kendall in writing of any breach of the foregoing warranty
during the term of this Agreement, Kendall shall, as Customer’s sole and
exclusive remedy, use commercially reasonable efforts to correct such non-
conformance and if Kendall fails to remedy the non-conformity, Customer
may terminate the Agreement.
8.4. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.3 IS MADE
FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN
SECTION 8.3 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, THE SERVICES (INCLUDING THE DOCUMENTATION) ARE PROVIDED “AS
IS,” AND Kendall MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER
WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN,
ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING,
TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT,
made available to end customers and prospects prior to their provision of
any Customer Personal Data to Customer or Kendall; (ii) the Customer Data
and use of the Customer Data (a) will not infringe, misappropriate, or
otherwise violate the Intellectual Property Rights or other rights of any third
party, (b) will not constitute defamation, invasion of privacy or publicity, or
otherwise violate any similar rights of any third party, and (c) will not be
used in any illegal activity or promote illegal activities, including, without
limitation, in a manner that might be illegal or harmful to any person or
entity; (iii) it will not distribute, share, or facilitate the distribution of
unauthorized data, malware, viruses, Trojan horses, spyware, worms, or
other malicious or harmful code; and (iv) Customer will comply with and will
at all times honor the terms and conditions of any on-line coupon or similar
marketing offer, deal or advertisement to market Customer’s products and
services offered or otherwise promoted via the Services.
8.3. Limited Warranty. Kendall warrants that the Services, when used in
accordance with the terms of this Agreement, will perform substantially in
accordance with the Documentation during the term of this Agreement. The
foregoing warranty shall not apply to performance issues of the Services
resulting from (i) content provided by or passed through Customer or third
parties in connection with the Services (including Customer Data and/or
Customer Personal Data); (ii) Customer’s data structures, operating
environment, equipment or other technology; (iii) the use or combination of
the Services with any other software, services or hardware not supported by
Kendall; (iv) causes external to the Services, such as problems with the
hardware, network or other infrastructure with which the Services are used;
(v) unauthorized or improper use of the Services; (vi) any modification of the
Services by Customer or its Authorized Users; or (vii) third party components
incorporated into the Services, including open source software. Provided that
Customer notifies Kendall in writing of any breach of the foregoing warranty
during the term of this Agreement, Kendall shall, as Customer’s sole and
exclusive remedy, use commercially reasonable efforts to correct such non-
conformance and if Kendall fails to remedy the non-conformity, Customer
may terminate the Agreement.
8.4. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.3 IS MADE
FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN
SECTION 8.3 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, THE SERVICES (INCLUDING THE DOCUMENTATION) ARE PROVIDED “AS
IS,” AND Kendall MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER
WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN,
ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING,
TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT,
OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE,
MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR
SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES
PROVIDED TO CUSTOMER BY Kendall, AND ANY OFFERS. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, Kendall DOES NOT WARRANT THAT
THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR OPERATE
WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE. SOME STATES
AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED
WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO
CUSTOMER.
SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES
PROVIDED TO CUSTOMER BY Kendall, AND ANY OFFERS. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, Kendall DOES NOT WARRANT THAT
THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR OPERATE
WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR FREE. SOME STATES
AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED
WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO
CUSTOMER.
LIMITATION OF LIABILITY
9.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL Kendall, NOR ANY OF ITS AFFILIATES,
SUBCONTRACTORS, LICENSORS, VENDORS OR SUPPLIERS, NOR ANY OF ITS
THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD
PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL,
INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES
ARISING FROM CUSTOMER’S OR ANY OTHER THIRD PARTY’S USE OF OR
INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF
TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES
WHETHER OR NOT Kendall HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF Kendall, ITS
LICENSORS AND VENDORS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE,
STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES
PAID BY CUSTOMER FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD
IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY
HEREUNDER, LESS ANY DAMAGES PREVIOUSLY PAID BY Kendall TO YOU IN
THAT SIX (6) MONTH PERIOD.
9.2. Basis of the Bargain. The parties agree that the limitations of liability set
forth in this Section 9 shall survive and continue in full force and effect
despite any failure of consideration or of an exclusive remedy. The parties
acknowledge that the Fees have been set and the Agreement entered into in
reliance upon these limitations of liability and that all such limitations form
an essential basis of the bargain between the parties.
9.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL Kendall, NOR ANY OF ITS AFFILIATES,
SUBCONTRACTORS, LICENSORS, VENDORS OR SUPPLIERS, NOR ANY OF ITS
THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD
PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL,
INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES
ARISING FROM CUSTOMER’S OR ANY OTHER THIRD PARTY’S USE OF OR
INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF
TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES
WHETHER OR NOT Kendall HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF Kendall, ITS
LICENSORS AND VENDORS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE,
STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES
PAID BY CUSTOMER FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD
IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY
HEREUNDER, LESS ANY DAMAGES PREVIOUSLY PAID BY Kendall TO YOU IN
THAT SIX (6) MONTH PERIOD.
9.2. Basis of the Bargain. The parties agree that the limitations of liability set
forth in this Section 9 shall survive and continue in full force and effect
despite any failure of consideration or of an exclusive remedy. The parties
acknowledge that the Fees have been set and the Agreement entered into in
reliance upon these limitations of liability and that all such limitations form
an essential basis of the bargain between the parties.
CONFIDENTIALITY
10.1. Confidential Information. During the term of this Agreement, each party
(the “Disclosing Party”) may provide the other party (the “Receiving Party”)
with certain information regarding the Disclosing Party’s business,
technology, products, or services, or other confidential or proprietary
10.1. Confidential Information. During the term of this Agreement, each party
(the “Disclosing Party”) may provide the other party (the “Receiving Party”)
with certain information regarding the Disclosing Party’s business,
technology, products, or services, or other confidential or proprietary
information (collectively, “Confidential Information”) in whatever form
(written, oral or visual) that is furnished or made available to the Receiving
Party by or on behalf of the Disclosing Party that (a) if in tangible form, the
Disclosing Party has labeled in writing as proprietary or confidential, (b) if in
oral or visual form, the Disclosing Party has identified as proprietary or
confidential at the time of disclosure, or (c) is of a character that is
commonly and reasonably regarded as confidential and/or proprietary. For
the avoidance of doubt, the Services, Documentation, and all enhancements
and improvements thereto, will be considered Confidential Information of
Kendall.
10.2. Protection of Confidential Information. The Receiving Party agrees that
it will not use or disclose to any third party any Confidential Information of
the Disclosing Party, except for exercising its rights and performing its
obligations under this Agreement. The Receiving Party will limit access to the
Confidential Information to its employees and contractors who have a need
to know, who are subject to confidentiality obligations no less restrictive than
those set forth herein and who have been informed of the confidential nature
of such information. In addition, the Receiving Party will protect the
Disclosing Party’s Confidential Information from unauthorized use, access, or
disclosure in the same manner that it protects its own proprietary
information of a similar nature, but in no event with less than reasonable
care. At the Disclosing Party’s request or upon termination of this Agreement,
the Receiving Party will return to the Disclosing Party or destroy (or
permanently erase in the case of electronic files) all copies of the
Confidential Information that the Receiving Party does not have a continuing
right to use under this Agreement, and, upon request, the Receiving Party
shall provide to the Disclosing Party written notice certifying compliance with
this sentence, unless prohibited by applicable law.
10.3. Exceptions. The confidentiality obligations set forth in this section will
not apply to any information that: (a) is or becomes generally available to
the public through no fault of the Receiving Party; (b) is lawfully provided to
the Receiving Party by a third party free of any confidentiality duties or
obligations; (c) the Receiving Party can prove, by clear and convincing
evidence, was already known to the Receiving Party without restriction at the
time of disclosure; or (d) the Receiving Party can prove, by clear and
convincing evidence, was independently developed by employees and
contractors of the Receiving Party who had no access to the Confidential
Information. In addition, the Receiving Party may disclose Confidential
Information to the extent that such disclosure is necessary for the Receiving
Party to enforce its rights under this Agreement or is required by law or by
the order of a court or similar judicial or administrative body, provided that
the Receiving Party promptly (to the extent legally permitted) notifies the
Disclosing Party in writing of such required disclosure and reasonably
Party by or on behalf of the Disclosing Party that (a) if in tangible form, the
Disclosing Party has labeled in writing as proprietary or confidential, (b) if in
oral or visual form, the Disclosing Party has identified as proprietary or
confidential at the time of disclosure, or (c) is of a character that is
commonly and reasonably regarded as confidential and/or proprietary. For
the avoidance of doubt, the Services, Documentation, and all enhancements
and improvements thereto, will be considered Confidential Information of
Kendall.
10.2. Protection of Confidential Information. The Receiving Party agrees that
it will not use or disclose to any third party any Confidential Information of
the Disclosing Party, except for exercising its rights and performing its
obligations under this Agreement. The Receiving Party will limit access to the
Confidential Information to its employees and contractors who have a need
to know, who are subject to confidentiality obligations no less restrictive than
those set forth herein and who have been informed of the confidential nature
of such information. In addition, the Receiving Party will protect the
Disclosing Party’s Confidential Information from unauthorized use, access, or
disclosure in the same manner that it protects its own proprietary
information of a similar nature, but in no event with less than reasonable
care. At the Disclosing Party’s request or upon termination of this Agreement,
the Receiving Party will return to the Disclosing Party or destroy (or
permanently erase in the case of electronic files) all copies of the
Confidential Information that the Receiving Party does not have a continuing
right to use under this Agreement, and, upon request, the Receiving Party
shall provide to the Disclosing Party written notice certifying compliance with
this sentence, unless prohibited by applicable law.
10.3. Exceptions. The confidentiality obligations set forth in this section will
not apply to any information that: (a) is or becomes generally available to
the public through no fault of the Receiving Party; (b) is lawfully provided to
the Receiving Party by a third party free of any confidentiality duties or
obligations; (c) the Receiving Party can prove, by clear and convincing
evidence, was already known to the Receiving Party without restriction at the
time of disclosure; or (d) the Receiving Party can prove, by clear and
convincing evidence, was independently developed by employees and
contractors of the Receiving Party who had no access to the Confidential
Information. In addition, the Receiving Party may disclose Confidential
Information to the extent that such disclosure is necessary for the Receiving
Party to enforce its rights under this Agreement or is required by law or by
the order of a court or similar judicial or administrative body, provided that
the Receiving Party promptly (to the extent legally permitted) notifies the
Disclosing Party in writing of such required disclosure and reasonably
cooperates with the Disclosing Party if the Disclosing Party seeks an
appropriate protective order.
10.4. Remedies. Any breach or threatened or attempted breach of this
Section 10 may result in immediate, irreparable harm for which monetary
damages would be an inadequate remedy. If a court of competent jurisdiction
finds that the Receiving Party has breached (or attempted or threatened to
breach) any of the obligations set forth in this Section 10, the Receiving Party
agrees that, without any additional findings of irreparable injury or other
conditions to injunctive relief, it will not oppose the entry of an appropriate
order compelling its performance and restraining it from any further
breaches (or attempted or threatened breaches).
10.4. Remedies. Any breach or threatened or attempted breach of this
Section 10 may result in immediate, irreparable harm for which monetary
damages would be an inadequate remedy. If a court of competent jurisdiction
finds that the Receiving Party has breached (or attempted or threatened to
breach) any of the obligations set forth in this Section 10, the Receiving Party
agrees that, without any additional findings of irreparable injury or other
conditions to injunctive relief, it will not oppose the entry of an appropriate
order compelling its performance and restraining it from any further
breaches (or attempted or threatened breaches).
INDEMNIFICATION
11.1. By Kendall. Kendall will defend at its expense any suit brought against
Customer, and will pay any settlement Kendall makes or approves, or any
damages finally awarded in such suit, insofar as such suit is based on a claim
by any third party alleging that the Services infringe or misappropriate any
Intellectual Property Rights in the U.S., Canada, European Union member
countries or the United Kingdom. If any portion of the Services becomes, or
in Kendall’s opinion is likely to become, the subject of a claim of
infringement, Kendall may, at Kendall’s option: (a) procure for Customer the
right to continue using the Service; (b) replace or modify the Services to be
non-infringing without materially impairing the functionality of the Services;
or (c) terminate this Agreement and refund to Customer the pro-rated
portion of any prepaid fees attributable to any unused Services, and upon
such termination, Customer will immediately cease all use of the Services.
Notwithstanding the foregoing, Kendall shall have no obligation under this
Section or otherwise with respect to any infringement claim based upon (v)
the Customer Data (w) any use of the Services not in accordance with this
Agreement or as specified in the Documentation; (x) any use of the Services
in combination with other products, equipment, software or data not supplied
by Kendall; (y) any modification of the Services by any person other than
Kendall; (z) modification of the Services based upon specifications furnished
by Customer (any of the foregoing circumstances under clauses (v) through
(z) will be collectively referred to as a “Customer Indemnity Responsibility”).
This Section 11.1 states the sole and exclusive remedy of Customer and the
entire liability of Kendall, or any of the officers, directors, employees,
shareholders, contractors or representatives of the foregoing, for third party
claims and actions described in this Section 11.1.
11.2. By Customer. Customer will indemnify, defend and hold Kendall, its
officers, directors, affiliates, subsidiaries, licensors, agents and employees
(each a “Kendall Party”) harmless from and against any and all losses,
damages, liability, costs and expenses awarded by a court or agreed upon in
11.1. By Kendall. Kendall will defend at its expense any suit brought against
Customer, and will pay any settlement Kendall makes or approves, or any
damages finally awarded in such suit, insofar as such suit is based on a claim
by any third party alleging that the Services infringe or misappropriate any
Intellectual Property Rights in the U.S., Canada, European Union member
countries or the United Kingdom. If any portion of the Services becomes, or
in Kendall’s opinion is likely to become, the subject of a claim of
infringement, Kendall may, at Kendall’s option: (a) procure for Customer the
right to continue using the Service; (b) replace or modify the Services to be
non-infringing without materially impairing the functionality of the Services;
or (c) terminate this Agreement and refund to Customer the pro-rated
portion of any prepaid fees attributable to any unused Services, and upon
such termination, Customer will immediately cease all use of the Services.
Notwithstanding the foregoing, Kendall shall have no obligation under this
Section or otherwise with respect to any infringement claim based upon (v)
the Customer Data (w) any use of the Services not in accordance with this
Agreement or as specified in the Documentation; (x) any use of the Services
in combination with other products, equipment, software or data not supplied
by Kendall; (y) any modification of the Services by any person other than
Kendall; (z) modification of the Services based upon specifications furnished
by Customer (any of the foregoing circumstances under clauses (v) through
(z) will be collectively referred to as a “Customer Indemnity Responsibility”).
This Section 11.1 states the sole and exclusive remedy of Customer and the
entire liability of Kendall, or any of the officers, directors, employees,
shareholders, contractors or representatives of the foregoing, for third party
claims and actions described in this Section 11.1.
11.2. By Customer. Customer will indemnify, defend and hold Kendall, its
officers, directors, affiliates, subsidiaries, licensors, agents and employees
(each a “Kendall Party”) harmless from and against any and all losses,
damages, liability, costs and expenses awarded by a court or agreed upon in
settlement, as well as all reasonable and related attorneys’ fees and court
costs arising out of or relating to: (a) a Customer Indemnity Responsibility;
(b) Customer’s breach or alleged breach of any representation, warranty or
obligation under the Agreement, or any violation of law; or (c) the use,
transmission, access, disclosure, or other processing of Customer Data.
11.3. Procedure. The indemnifying party’s obligations as set forth above are
expressly conditioned upon each of the foregoing: (a) the indemnified party
shall promptly notify the indemnifying party in writing of any threatened or
actual claim or suit; (b) the indemnifying party shall have sole control of the
defense or settlement of any claim or suit; and (c) the indemnified party
shall cooperate with the indemnifying party to facilitate the settlement or
defense of any claim or suit.
(b) Customer’s breach or alleged breach of any representation, warranty or
obligation under the Agreement, or any violation of law; or (c) the use,
transmission, access, disclosure, or other processing of Customer Data.
11.3. Procedure. The indemnifying party’s obligations as set forth above are
expressly conditioned upon each of the foregoing: (a) the indemnified party
shall promptly notify the indemnifying party in writing of any threatened or
actual claim or suit; (b) the indemnifying party shall have sole control of the
defense or settlement of any claim or suit; and (c) the indemnified party
shall cooperate with the indemnifying party to facilitate the settlement or
defense of any claim or suit.
TERM AND TERMINATION
12.1. Term. Unless otherwise specified on an applicable Service Order, this
Agreement commences on Customer’s registration for an account, and shall
continue in effect for thirty (30) days (the “Initial Term”). Thereafter, and
unless otherwise specified in a Service Order, this Agreement and each
applicable Service Order shall automatically renew for successive thirty (30)
day terms (each a “Renewal Term”), unless either party provides notice to
the other party of its intention not to renew prior to expiration of the Initial
Term or the then-current Renewal Term. Customer must provide at least five
(5) days prior notice and Kendall must provide at least fifteen (15) days prior
notice. Notification of such non-renewal from Customer to Kendall must be
provided as detailed in the Cancellation page on the Kendall website, which
must be confirmed by Kendall. The Initial Term and all Renewal Terms will
collectively be referred to as the “Term”.
12.2. Termination. Either party may terminate this Agreement immediately
upon notice to the other party if the other party materially breaches this
Agreement, and such breach remains uncured more than thirty (30) days
after receipt of written notice of such breach. Kendall may terminate this
Agreement at any time without cause and without notice. In addition, Kendall
may terminate this Agreement upon notice to Customer if (a) Customer
becomes the subject of a petition in bankruptcy or any proceeding relating to
insolvency, receivership, or liquidation for the benefit of creditors; (b) in the
event of non-payment in accordance with Section 6; or (c) Customer is on a
free-tiered account and such account is inactive for a period of twelve (12)
months or more. Upon termination, Customer shall not be entitled to any
refund of any Fees previously paid to Kendall for Services except in the event
Kendall terminates without cause or Customer terminates due to Kendall’s
uncured material breach, in which case Customer may be entitled to a pro-
rata refund of any pre-paid and unused Fees advanced to Kendall.
12.1. Term. Unless otherwise specified on an applicable Service Order, this
Agreement commences on Customer’s registration for an account, and shall
continue in effect for thirty (30) days (the “Initial Term”). Thereafter, and
unless otherwise specified in a Service Order, this Agreement and each
applicable Service Order shall automatically renew for successive thirty (30)
day terms (each a “Renewal Term”), unless either party provides notice to
the other party of its intention not to renew prior to expiration of the Initial
Term or the then-current Renewal Term. Customer must provide at least five
(5) days prior notice and Kendall must provide at least fifteen (15) days prior
notice. Notification of such non-renewal from Customer to Kendall must be
provided as detailed in the Cancellation page on the Kendall website, which
must be confirmed by Kendall. The Initial Term and all Renewal Terms will
collectively be referred to as the “Term”.
12.2. Termination. Either party may terminate this Agreement immediately
upon notice to the other party if the other party materially breaches this
Agreement, and such breach remains uncured more than thirty (30) days
after receipt of written notice of such breach. Kendall may terminate this
Agreement at any time without cause and without notice. In addition, Kendall
may terminate this Agreement upon notice to Customer if (a) Customer
becomes the subject of a petition in bankruptcy or any proceeding relating to
insolvency, receivership, or liquidation for the benefit of creditors; (b) in the
event of non-payment in accordance with Section 6; or (c) Customer is on a
free-tiered account and such account is inactive for a period of twelve (12)
months or more. Upon termination, Customer shall not be entitled to any
refund of any Fees previously paid to Kendall for Services except in the event
Kendall terminates without cause or Customer terminates due to Kendall’s
uncured material breach, in which case Customer may be entitled to a pro-
rata refund of any pre-paid and unused Fees advanced to Kendall.
12.3. Effect of Termination. Upon termination or expiration of this Agreement
for any reason: (a) all rights and obligations of both parties, including all
licenses granted hereunder, shall immediately terminate (except that all
payment obligations accrued prior to termination or expiration shall survive);
and (b) each party shall comply with the obligations to return or destroy all
Confidential Information of the other party, as set forth in Section 10.2.
Additionally, Kendall shall have no obligation retain any Customer Data after
any termination or expiration of this Agreement and may delete all Customer
Data, unless required by applicable law. All liabilities accrued under this
Agreement prior to the effective date of termination and the following
Sections will survive expiration or termination of this Agreement for any
reason: 1 (Definitions), 2 (Modification of the Agreement), 4.3 (Suspension,
Limitation and Termination of Access), 5 (Intellectual Property), 6 (Fees and
Expenses; Payments), 8.4 (Disclaimer), 9 (Limitation of Liability), 10
(Confidentiality), 11 (Indemnification), 12.3 (Effect of Termination) and 13
(Miscellaneous).
licenses granted hereunder, shall immediately terminate (except that all
payment obligations accrued prior to termination or expiration shall survive);
and (b) each party shall comply with the obligations to return or destroy all
Confidential Information of the other party, as set forth in Section 10.2.
Additionally, Kendall shall have no obligation retain any Customer Data after
any termination or expiration of this Agreement and may delete all Customer
Data, unless required by applicable law. All liabilities accrued under this
Agreement prior to the effective date of termination and the following
Sections will survive expiration or termination of this Agreement for any
reason: 1 (Definitions), 2 (Modification of the Agreement), 4.3 (Suspension,
Limitation and Termination of Access), 5 (Intellectual Property), 6 (Fees and
Expenses; Payments), 8.4 (Disclaimer), 9 (Limitation of Liability), 10
(Confidentiality), 11 (Indemnification), 12.3 (Effect of Termination) and 13
(Miscellaneous).
MISCELLANEOUS
13.1. Marketing. Customer agrees that Kendall may refer to Customer by
name, logo and trademark in Kendall’s marketing materials and website.
Customer acknowledges and agrees that Kendall does not certify or endorse,
and has no obligation to certify or endorse, any of Customer’s products,
services, or content.
13.2. Governing Law and Venue. This Agreement and any action related
thereto will be governed and interpreted by and under the laws of the
Commonwealth of Massachusetts, without giving effect to any conflicts of
laws principles that require the application of the law of a different
jurisdiction. Customer hereby expressly consents to the personal jurisdiction
and venue in the state and federal courts located in Boston, Massachusetts
for any lawsuit arising from or related to this Agreement. The United Nations
Convention on Contracts for the International Sale of Goods does not apply
to this Agreement. Customer may not bring any suit or action against Kendall
for any reason whatsoever more than one (1) year after the cause of action
accrued.
13.3. Export. Customer agrees not to export, re-export, or transfer, directly
or indirectly, any any software, technology or information forming a part of
the Services or the Documentation in violation of any export control or other
laws and regulations of the United States or any other relevant jurisdiction.
13.4. Severability. If any provision of this Agreement is, for any reason, held
to be invalid or unenforceable, the other provisions of this Agreement will
remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent
13.1. Marketing. Customer agrees that Kendall may refer to Customer by
name, logo and trademark in Kendall’s marketing materials and website.
Customer acknowledges and agrees that Kendall does not certify or endorse,
and has no obligation to certify or endorse, any of Customer’s products,
services, or content.
13.2. Governing Law and Venue. This Agreement and any action related
thereto will be governed and interpreted by and under the laws of the
Commonwealth of Massachusetts, without giving effect to any conflicts of
laws principles that require the application of the law of a different
jurisdiction. Customer hereby expressly consents to the personal jurisdiction
and venue in the state and federal courts located in Boston, Massachusetts
for any lawsuit arising from or related to this Agreement. The United Nations
Convention on Contracts for the International Sale of Goods does not apply
to this Agreement. Customer may not bring any suit or action against Kendall
for any reason whatsoever more than one (1) year after the cause of action
accrued.
13.3. Export. Customer agrees not to export, re-export, or transfer, directly
or indirectly, any any software, technology or information forming a part of
the Services or the Documentation in violation of any export control or other
laws and regulations of the United States or any other relevant jurisdiction.
13.4. Severability. If any provision of this Agreement is, for any reason, held
to be invalid or unenforceable, the other provisions of this Agreement will
remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent
permitted by law.
13.5. Waiver. Any waiver or failure to enforce any provision of this Agreement
on one occasion will not be deemed a waiver of any other provision or of
such provision on any other occasion.
13.6. No Assignment. Customer may not assign its rights or delegate any
obligations hereunder without the express prior written consent of Kendall.
Any assignment by Customer without the prior written consent of Kendall
shall be null and void. Kendall may assign its rights or obligations hereunder
without notice or consent; provided, however, that the Services shall
continue to operate as specified in this Agreement. This Agreement shall
inure to the benefit of each party’s permitted successors and assigns.
13.7. Force Majeure. Without limiting any other provision in the Agreement,
Kendall, or any Kendall Party, is not responsible or liable to any Customer for
delay or failure to perform its obligations hereunder in the event that any of
Kendall or Kendall Parties’ operations or activities are affected by any cause
or event beyond the sole and reasonable control of the applicable Kendall
Party (as determined by such party in its sole discretion), including, without
limitation, by reason of any acts of God, equipment failure, threatened or
actual terrorist acts, air raid, act of public enemy, war (declared or
undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire,
explosion, earthquake, flood, hurricane, unusually severe weather, blackout,
embargo, labor dispute or strike (whether legal or illegal), labor or material
shortage, transportation interruption of any kind, work slowdown, any law,
rule, regulation, action, order, or request adopted, taken, or made by any
governmental or quasi-governmental entity (whether or not such
governmental act proves to be invalid), or any other cause, whether or not
specifically mentioned above.
13.8. Independent Contractors. Each party’s relationship to the other party is
that of an independent contractor, and neither party is an agent or partner of
the other. Neither party will have, and will not represent to any third party
that it has, any authority to act on behalf of the other.
13.9. Notices. Where Kendall requires you provide an email address, you are
responsible for providing Kendall with your most current email address. In
the event that the last email address you provided to Kendall is not valid, or
for any reason is not capable of delivering to you any notices required/
permitted by the Agreement, Kendall’s dispatch of the email containing such
notice will nonetheless constitute effective notice. You may give notice to
Kendall at the following email address: legal@Kendall.com. Notice shall be
deemed to have been duly given on the first business day following
successful email transmission to Kendall.
13.5. Waiver. Any waiver or failure to enforce any provision of this Agreement
on one occasion will not be deemed a waiver of any other provision or of
such provision on any other occasion.
13.6. No Assignment. Customer may not assign its rights or delegate any
obligations hereunder without the express prior written consent of Kendall.
Any assignment by Customer without the prior written consent of Kendall
shall be null and void. Kendall may assign its rights or obligations hereunder
without notice or consent; provided, however, that the Services shall
continue to operate as specified in this Agreement. This Agreement shall
inure to the benefit of each party’s permitted successors and assigns.
13.7. Force Majeure. Without limiting any other provision in the Agreement,
Kendall, or any Kendall Party, is not responsible or liable to any Customer for
delay or failure to perform its obligations hereunder in the event that any of
Kendall or Kendall Parties’ operations or activities are affected by any cause
or event beyond the sole and reasonable control of the applicable Kendall
Party (as determined by such party in its sole discretion), including, without
limitation, by reason of any acts of God, equipment failure, threatened or
actual terrorist acts, air raid, act of public enemy, war (declared or
undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire,
explosion, earthquake, flood, hurricane, unusually severe weather, blackout,
embargo, labor dispute or strike (whether legal or illegal), labor or material
shortage, transportation interruption of any kind, work slowdown, any law,
rule, regulation, action, order, or request adopted, taken, or made by any
governmental or quasi-governmental entity (whether or not such
governmental act proves to be invalid), or any other cause, whether or not
specifically mentioned above.
13.8. Independent Contractors. Each party’s relationship to the other party is
that of an independent contractor, and neither party is an agent or partner of
the other. Neither party will have, and will not represent to any third party
that it has, any authority to act on behalf of the other.
13.9. Notices. Where Kendall requires you provide an email address, you are
responsible for providing Kendall with your most current email address. In
the event that the last email address you provided to Kendall is not valid, or
for any reason is not capable of delivering to you any notices required/
permitted by the Agreement, Kendall’s dispatch of the email containing such
notice will nonetheless constitute effective notice. You may give notice to
Kendall at the following email address: legal@Kendall.com. Notice shall be
deemed to have been duly given on the first business day following
successful email transmission to Kendall.
13.10. Entire Agreement. This Agreement, any applicable Service Orders, our
Acceptable Use Policy, Data Processing Agreement, and, if applicable, our API
Terms of Use constitute the final, complete and exclusive agreement of the
parties with respect to the subject matters hereof and supersedes and
merges all prior discussions between the parties with respect to such subject
matters. Except as otherwise set forth in the Agreement, no modification of
or amendment to this Agreement, or any waiver of any rights under this
Agreement, will be effective unless in writing and signed by an authorized
signatory of Customer and Kendall.
Terms of Use constitute the final, complete and exclusive agreement of the
parties with respect to the subject matters hereof and supersedes and
merges all prior discussions between the parties with respect to such subject
matters. Except as otherwise set forth in the Agreement, no modification of
or amendment to this Agreement, or any waiver of any rights under this
Agreement, will be effective unless in writing and signed by an authorized
signatory of Customer and Kendall.