PLEASE READ THESE TERMS CAREFULLY. IF YOU ELECTRONICALLY ACCEPT THESE TERMS, EXECUTE AND DELIVER THESE TERMS, OR OTHERWISE USE THE Kenesto SERVICES OR SOFTWARE (COLLECTIVELY, THE “SERVICE”), YOU AGREE TO BE BOUND BY ALL OF THESE TERMS (THE “AGREEMENT”) AS A LEGALLY BINDING AGREEMENT BETWEEN YOU AND Kenesto® Corporation (“Kenesto”). IF YOU DO NOT ACCEPT THE TERMS, YOU ARE NOT PERMITTED TO USE THE SERVICE. If you are entering this Agreement as an employee or representative of your employer, the term “you” includes your employer and any other party on whose behalf you act.
- Provision of Service. This Agreement described the terms and conditions upon which Kenesto will provide the Service, a SaaS suite of cloud storage applications, to you. Subject to your acceptance of this agreement and subsequent payment of the applicable fees and your compliance with this Agreement, Kenesto will provide the Service to you as described herein. In order to use the Service, you may be issued an individual username and password. You must safeguard your username and password and keep them confidential, and you will be responsible for any use of the Service by means of your username and password.
- Software License. Subject to the terms of this Agreement, Kenesto grants you a non-exclusive, non-transferable license to use Kenesto Service and any upgrades and updates to such Service made available by Kenesto from time to time (collectively, the “Service”), solely for use in connection with use of the Services and only during the Term (as defined herein). Kenesto also grants you a non-exclusive, non-transferable license to use the accompanying software documentation (“Documentation”), as available, in connection with your use of the Service. You acquire no right, title, or interest to the Service or Documentation except the limited license described in this paragraph. Any of Kenesto’s free service is a limited version of the Service (Kenesto may change these limitations from time to time).
- Your Systems. The Service and Software provide access to data held on your IT systems (the “Customer Systems”). By entering into this Agreement, you agree to provide and allow Kenesto access to your Customer Systems via the Internet for the purposes of providing the Service to you, and you represent and warrant that you have the right to grant this access to Kenesto. You are solely responsible for the set-up, maintenance, and security of the Customer Systems, and you acknowledge that frequent, regular software updates for Internet browsers, antivirus, operating systems, and other communication software are essential to the security of the Customer Systems.
- Software Upgrades. In order to use the Service, any Software updates and upgrades that Kenesto makes available must be installed on the Customer Systems. By entering this Agreement and subscribing to the Service, you agree that Kenesto may automatically install any Software updates and upgrades on the Customer Systems via remote installation. If you disable the automatic updating function or otherwise fail to install and implement any Software update or upgrade within a reasonable time after release by Kenesto, this Agreement will be terminated without liability to you, and you will no longer have any right to use the Service.
- Your Data; Kenesto Confidentiality Obligation. In providing the Service to you, Kenesto will be granted access to data stored on Customer Systems consistent with Kenesto’s Privacy Statement. You represent and warrant that, to the extent required, you have obtained all necessary rights and licenses to the data stored on Customer Systems for use as contemplated by this Section 5 and that Kenesto’s use of the data stored on Customer Systems as set forth herein will not violate any intellectual property rights or privacy rights of any third party. You acknowledge that, in relation to the EU Data Protection Directive (also known as Directive 95/46/EC), Kenesto acts as a processor of data (“data processor”). Kenesto will keep the Customer data confidential stored exclusively on the Kenesto Cloud Domain, use it only to deliver the Service to you, and not disclose it to any third party except Kenesto employees and contractors who have entered into binding agreements with Kenesto that contain non-disclosure obligations equivalent to those set forth in this Agreement. Kenesto may anonymously aggregate non-identifiable Customer Meta-Data with non-identifiable anonymous meta-data from other Kenesto customers and third parties to create anonymous aggregated meta-data that does not identify any individual customer or the metrics or information pertaining to any individual customer or its domain (“Aggregated Meta-Data”). Kenesto will own all rights to Aggregated Meta-Data, and has the irrevocable right to maintain, store, use and disclose Aggregated Meta-Data.
- Feedback. Upon request by Kenesto, you will provide Kenesto with reasonable information about your use and evaluation of the Service, including, without limitation, any errors, logs, usage statistics or problems in the Service and any information reasonably necessary for Kenesto to evaluate such errors or problems, test results and performance data, information relating to the compliance of the Service with documentation, specifications or functionality and comparison with other software or products (collectively, “Evaluation Data”). Without limiting the foregoing, you irrevocably consent to Kenesto’s collection of Evaluation Data and any other information and data relating to your use of the Service, by various means (including without limitation through the Service), without any further notice to, or consent of, you.
- Restrictions. You may NOT: (i) make any copies of all or any part of the Software or otherwise reproduce the Software except for archival copies as permitted by the United States Copyright Act; (ii) copy or modify all or any part of the Documentation or distribute it to third parties; (iii) use the Software or Service in connection with a service-bureau, time sharing or fee-for-service arrangement with third parties, or otherwise provide the benefit of the Service to any third party; (iv) unless otherwise permitted by applicable local law, decompile, decrypt, disassemble, reverse engineer or otherwise discover the source code for the Software, or attempt to disable or defeat any locking mechanism within the Software; (v) modify the Software, incorporate the Software in whole or in part in any other product or create derivative works based on all or any part of the Software; (vi) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software; or (vii) export the Software or use the Software in any country other than that in which it was obtained. You acknowledge that the Software is subject to United States export laws and regulations and you shall comply with all such laws and regulations in your use of the Software.
- Ownership, Non-Disclosure. Kenesto owns and will retain all right, title and interest, including without limitation all copyright, trademark, trade secret, patent and other proprietary rights, in and to the Service, Software, Documentation, Evaluation Data and Aggregated Data (the “Proprietary Materials”). You shall keep confidential and not disclose, sell, lease, transfer, sublicense, dispose of, or otherwise make available the Proprietary Materials or any portion thereof, in source or object code, to any third party other than your employees who need access to the Proprietary Materials in order to use the Service and exercise your license rights granted herein. You agree that dissemination of the Proprietary Materials in breach of this Agreement would cause irreparable harm to Kenesto for which monetary compensation alone would be inadequate, and Kenesto is entitled to seek injunctive relief prohibiting any such dissemination, in addition to monetary damages and all other remedies available at law or in equity. This Agreement is NOT a sale of the Proprietary Materials or any copy of them. You obtain only such rights as are provided in this Agreement.
- Term; Enforcement of Terms; Termination. This Agreement takes effect when you first subscribe for the Service or otherwise begin using the Service, and continues until terminated as set forth in this Agreement (the “Term”). If you fail to fulfill any of your material obligations under this Agreement, Kenesto and/or its licensors may pursue all available legal remedies to enforce this Agreement, and Kenesto may, at any time after your default of this Agreement, terminate this Agreement and all licenses and rights granted to you hereunder. You agree that Kenesto’s licensors referenced in the Software are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property. This License is effective until terminated. This License will terminate immediately without notice from Kenesto if you fail to comply with any of its provisions. Upon termination you must destroy and uninstall the Software and all copies thereof, and you may terminate this License at any time by doing so.
- Renewal of Service. Upon the expiration of the initial Subscription Term set forth in an Order Form, the Service shall automatically renew for an additional Subscription Term of equal duration unless Customer notifies Kenesto in writing of its election not to renew such Kenesto Service at least thirty (30) days prior to the expiration of the then-current Subscription Term. Unless otherwise set forth in an Order Form, each Subscription Term that is renewed under these Terms, shall renew based upon Kenesto’s then-current list pricing at the time of such renewal.
- U. S. Government Users. Pursuant to the policy stated at 48 CFR 227.7202-1, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by Kenesto for licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government, except to the extent which such licenses are inconsistent with Federal procurement law. Contractor/manufacturer is Kenesto, LLC of 1050 Winter St. Suite 2700 Waltham, MA 02451
- Support for non-paying customers. Kenesto will provide you with reasonable assistance with installation of the Software through its email help address at support@Kenesto.com. Except for any such assistance and at the discretion of Kenesto, the Service will include any implementation, helpdesk, support or maintenance services with respect to the Software, or to any bug fixes, error corrections, updates, upgrades or new versions of the Software (collectively, “Support Services”). The assistance provided by Kenesto is not bound to any SLAs or SLOs.
- Limited Warranty and Disclaimer. Kenesto warrants that, during the period that you have paid applicable fees and remain in compliance with this Agreement, the Service will operate in substantial conformance with the functionality current at the time of shipment. Kenesto’s sole responsibility and your sole remedy for any failure of the Service to conform to this warranty shall be Kenesto’s commercially reasonable efforts to remedy any error in the Service so as to conform to the warranty within a reasonable time after you notify Kenesto of the error, or, in the event that Kenesto is unable to remedy the error, Kenesto shall refund to you the fees paid by you, if any, with respect to the period during which the Service failed to operate in accordance with the limited warranty. Neither Kenesto nor its licensors make any warranties with respect to third party software included in the Software. EXCEPT FOR THE FOREGOING WARRANTY, Kenesto PROVIDES THE SERVICE AND SOFTWARE TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY Kenesto EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SERVICE OR SOFTWARE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. Kenesto’s LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE. IN NO EVENT SHALL Kenesto BE LIABLE FOR ANY BREACH OF THIS AGREEMENT TO THE EXTENT SUCH BREACH IS OUTSIDE ITS REASONABLE CONTROL.
- Limitation of Liability. IN NO EVENT SHALL Kenesto OR ITS LICENSORS or any of their respective shareholders, directors, officers, employees, agents or other affiliates BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWILL), WHETHER OR NOT Kenesto HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Kenesto’s MAXIMUM LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OR POSSESSION OF THE SOFTWARE, INCLUDING WITHOUT LIMITATION ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE AMOUNT OF THE FEES YOU HAVE PAID FOR THE SERVICE PROVIDED UNDER THIS AGREEMENT.
THE CONSIDERATION TO BE RECEIVED BY Kenesto HEREUNDER DOES NOT INCLUDE COMPENSATION FOR ASSUMING OR INSURING ANY OF THE RISKS AND LIABILITIES DISCLAIMED BY Kenesto. THE LIMITATIONS AND DISCLAIMERS PROVIDED IN THIS SECTION ARE INTENDED TO PREVAIL OVER ANY PROVISION HEREIN TO THE CONTRARY.
- Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, excluding its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. You and Kenesto agree that the federal and state courts located in Suffolk County, Massachusetts, shall have exclusive jurisdiction over any disputes arising in connection with the Service or this Agreement, and each party hereby submits to jurisdiction and venue of such courts.
- Complete Agreement. This Agreement constitutes the entire agreement between you and Kenesto in relation to the Service, and supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and Kenesto relating to the Service and Software, and may only be modified in writing signed by you and Kenesto. You may not assign this Agreement or any right or license hereunder without the prior written consent of Kenesto. In the event any term of this Agreement is held by a court of competent jurisdiction not to be enforceable, the remaining terms shall survive and be enforced to the maximum extent permissible by law. No waiver of any right or obligation contained herein shall be given except in writing signed by the party against whom the waiver is sought to be enforced.
Last update: 15 May 2015