Acceptance of the Terms of Service
IMPORTANT — READ CAREFULLY: WELCOME TO WWW.KHORUS.COM AND OUR RELATED WEB-BASED AND/OR MOBILE APPLICATION PROVIDED AS AN ONLINE SERVICE (“PRODUCT”). KHORUS ALSO PROVIDES CONFIGURATION, IMPLEMENTATION, TEAM ALIGNMENT, TRAINING AND CONSULTING SERVICES RELATED TO THE PRODUCT (“PROFESSIONAL SERVICES”). IT IS IMPORTANT LICENSEE UNDERSTANDS THAT ITS USE OF THE PRODUCT AND RELATED PROFESSIONAL SERVICES PROVIDED BY KHORUS IS SUBJECT TO THESE TERMS OF SERVICE. THIS IS A LEGAL AGREEMENT (“AGREEMENT”) BETWEEN THE LICENSEE AND KHORUS SOFTWARE, LLC (“WE”, “US”, OR “KHORUS”), A DELAWARE LIMITED LIABILITY COMPANY, FOR NONEXCLUSIVE, NONTRANSFERABLE USE OF THE KHORUS PRODUCT AND PROFESSIONAL SERVICES.
BY CREATING AN ACCOUNT OR BY USING THE KHORUS PRODUCT THE LICENSEE AND ITS AUTHORIZED END USERS AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. “LICENSEE” MEANS THE COMPANY OR OTHER LEGAL ENTITY ACCESSING OR USING THE KHORUS PRODUCT AND PROFESSIONAL SERVICES. “AUTHORIZED USER(S)” MEANS ANY EMPLOYEE OR CONTRACTOR DESIGNATED BY LICENSEE TO USE THE PRODUCT AND PROFESSIONAL SERVICES SOLELY FOR LICENSEE’S INTERNAL BUSINESS PURPOSES.
WE RESERVE THE RIGHT TO CHANGE AND UPDATE THE AGREEMENT AT ANY TIME AT OUR SOLE DISCRETION WITHOUT ACCEPTANCE OR NOTICE TO LICENSEE OR ITS AUTHORIZED USERS.
THE INDIVIDUAL ACCEPTING THE AGREEMENT REPRESENTS AND WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY AND ITS AFFILIATES AS WELL AS THE INDIVIDUAL TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Do not use the Product or Service if the Licensee or the Authorized User does not agree with the terms of this Agreement. It’s important to note that the Agreement applies to the use of the Product on paid plans (“Product Plan”) and also on any free trial period or beta plan (“Beta”) period. By using the Product, Licensee and Authorized Users signifies their irrevocable acceptance of this Agreement.
The website, service, and any downloadable or accessible software associated with the Product are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
I. DESCRIPTION OF THE KHORUS PRODUCT
The Product includes a website and the related software, data, user experiences, and other applications as Khorus, in its sole discretion, may provide as part of the Product during the applicable paid plan period (“Plan Term”), evaluation or beta period, allowing Licensee and Authorized Users access to and use of a single Khorus Account during the applicable Plan Term or the evaluation or beta period as applicable. The Product provides companies and individuals an online status report tool that collects and displays status updates in a collaborative online workspace. Licensee and Authorized Users may use the Product to create, update, share, store, and publish information, data, text, messages, or other materials (“User Content”). Without limiting the foregoing, the Product is not designed or licensed for use in hazardous environments requiring fail-safe controls.
Khorus, at its sole discretion, can modify any and all features of the Product at any time without prior notice. Unless explicitly stated otherwise, any new features we create to enhance or augment the Product shall be subject to the Agreement.
In order to use the Product, License and Authorized Users must obtain access to the Internet, either directly or through devices that access web-based content, and pay any Product fees associated with such access, as well as provide all equipment necessary to make such connection to the Internet. Licensee and Authorized Users will not access the Product by any means other than the interfaces provided by Khorus for use in accessing the Product.
The Product includes communications from Khorus that include Product announcements, messages, and more. These communications are part of the Product, and as such Licensee and Authorized Users may not be able to opt out of receiving such messages however there are certain Product-related messages, such as status report reminders, that can disabled within Account settings.
II. USE OF KHORUS
1. Registration. In order to use the Product, Licensee and Authorized Users will need a valid Account, which requires that a valid electronic email address and other identifying information be provided to us for each Licensee and Authorized User (“Personal Information”) to access the Account. Each Licensee and Authorized User should take great care of such Personal Information as each is responsible for maintaining the confidentiality of the access data for the Accounts, and is fully responsible for all activities that occur under each of their respective Accounts. Khorus cannot and will not be liable for any loss or damage arising from Licensee’s or any Authorized User’s failure to comply with this section.
Each Licensee and Authorized User must give true and accurate data during the registration process, and must keep that information up to date and accurate. We assume no duty to verify such information. If Licensee or Authorized User provides any information that is untrue, inaccurate, not current or incomplete, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate the Account and refuse any and all current or future use of the Product.
This Product is not intended for use by anyone under age 13. If an Authorized User is under 13 years of age then the minor’s parent or guardian must review and complete the registration process on the minor’s behalf.
2. Full Use of Product.
(a) License for Plan Term Product Use. Contingent on Licensee’s and Authorized User’s full compliance with the terms and conditions of the Agreement and the applicable Khorus Order Form, Khorus grants Licensee and Authorized Users a non-exclusive, non-transferable, limited, revocable right to access and use the Product during the applicable Plan Term specified in the relevant Order Form solely for Licensee’s internal business use. Use of the Product is purchased on a per user basis and Products may be accessed only during the Plan Term and by no more than the specific number of Authorized Users set forth in the relevant Order Form. Additional Authorized User seats may be purchased during the applicable term, prorated for the remainder of the term in effect at the time the additional Authorized User seats are purchased, and the added Authorized User seats shall terminate on the same date as the pre-existing Authorized User seats. An Authorized User seat is only for the designated user and cannot be accessed, shared or used by more than one user. A new Authorized User may replace a former user who no longer requires access to or use of the Product. An Authorized User seat may not be transferred between designated Authorized User more frequently than every thirty (30) days within the same operating quarter. Except as stated otherwise by Khorus in the applicable Order Form and unless terminated earlier pursuant to this Agreement:
i) all monthly Plan Terms automatically renew for an additional monthly period unless Khorus or the Licensee give not less than thirty (30) days’ notice of their decision not to undertake the new monthly Plan Term;
ii) all annual Plan Terms automatically renew for an additional twelve (month) period unless Khorus or the Licensee give not less than thirty (30) days’ notice of their decision not to undertake the new annual Plan Term;
iii) the pricing for renewed Plan Terms will be based on the then-current list price for the existing Authorized User seats;
iv) any new Authorized User seats purchased by Licensee will be priced at the then -current list price for the new Authorized User seats;
v) all Plan Terms will be co-termed to renew or expire on the same date.
(b) Technical Support. During the applicable Plan Term, License is entitled to receive Technical Support. License can log Product errors via e-mail, and Khorus will respond within a reasonable period of time via e-mail or phone. Khorus will respond to Technical Support requests on a commercially reasonable efforts basis and to enable Khorus to deliver Technical Support to Licensee, Licensee or an Authorized User will submit to Khorus a listing of output, screenshots, and such other data as Khorus reasonably may request in order to reproduce operating conditions similar to those present when you detected an error. Technical Support hours are 8:00 am to 5:00 PM CST, Monday – Friday, excluding holidays observed by Khorus. Technical Support may be further described at www.khorus.com and may be changed from time to time at Khorus’s sole discretion.
3. Beta Use of Product. Licensee may be invited by us to use a Product under development prior to its public release as part of a Khorus beta program in order to evaluate the Product and provide Licensee’s or Authorized User’s Ideas (as defined later in the Agreement) to us about the Product. We will provide Licensee with a demonstration of or access to the Product for a period of time to be determined by Khorus and Licensee will provide us with Ideas subject to the terms and conditions of the Agreement including the following:
(a) License for Beta Product. If Licensee is invited by Khorus to use the Beta Product as part of the beta program and subject to Licensee’s and its Authorized Users’ ongoing compliance with the terms and conditions of this Agreement and the beta program, Khorus hereby grants to Licensee and its Authorized Users a limited, non- transferable and non-exclusive license during the beta program period to access and use the Beta Product for beta program purposes only. Licensee agrees to provide and update all information that is reasonably necessary for the beta program. Licensee agrees that Khorus may use any of Licensee’s data or User Content necessary for the purposes of beta program. Khorus is not responsible for the accuracy, completeness or integrity of any original data or User Content received from Licensee which is entered into the Product database by Licensee or its Authorized Users.
Khorus does not warrant the accuracy of data in reports generated using Licensee’s original data and expressly disclaims responsibility for the results obtained through reports designed and generated by Licensee or any Authorized User using the Beta Product’s reporting functionality. Licensee is solely responsible for data validation in any reports designed and generated by Licensee or its Authorized Users.
(b) AS IS Experimental Products. Licensee understands and accepts that the Beta Products are demonstrated or provided on an “AS IS” and “AS AVAILABLE” basis, the Beta Products are experimental and may not be made available with the components, features or function seen in the beta program and that the Beta Products may not be generally released.
4. Confidentiality. Confidential Information of Khorus includes but is not limited to the Product, including any output of the Product, the Product’s components, design, documentation, existence, features, information about trade secrets, strategies, business models, algorithms, software, Ideas and the existence and terms and conditions of this Agreement are proprietary and confidential information of Khorus. Licensee (including its Authorized Users) shall not disclose or provide the Products, documentation, or any related information, including but not limited to the Products features and/or related information, to any third party, including but not limited to, the press, online news and/or groups, or any such similar outlets without Khorus’s express prior written consent for any such disclosure. The Licensee may disclose confidential information in accordance with a judicial or other governmental order so long as the Licensee provides Khorus with prompt written notice prior to the disclosure and shall comply with any applicable protective order or its equivalent. The Licensee shall not be liable to Khorus for disclosure of information which Licensee can prove (a) is already known by the Licensee without an obligation to maintain the confidentiality of the information; (b) becomes publicly known through no wrongful action of the Licensee; or (c) is independently developed by the Licensee without reference to the confidential information. The confidentiality obligations shall survive any expiration or termination of this Agreement, Plan Term or evaluation or beta program period.
By using the Product, Licensee agrees Licensee may be exposed to User Content that is offensive, indecent, or objectionable. Under no circumstances will Khorus be liable in any way for any User Content. Licensee acknowledges that we do not pre-screen User Content, but that Khorus and our designees shall have the right (but not the obligation) in their sole discretion to refuse, move, or remove any Content that is available via the Product. Licensee must bear all risks associated with the use of any User Content, and Licensee acknowledges that Licensee may not reasonably rely on any User Content. Khorus reserves the right to access, read, preserve, and disclose any information as it believes, in its sole discretion, is necessary to (a) satisfy any applicable law, regulation, legal process or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of Khorus, its users and the public. Khorus will not be responsible or liable for the exercise or non-exercise of its rights under this Agreement.
Should User Content be found or reported to be in violation with, but not limited to, the following terms, it will be in Khorus’s sole discretion as to what action should be taken. Licensee agrees that Licensee will not:
(a) upload, post, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically, or otherwise objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a Khorus official, forum leader, guide, or host, or falsely state or otherwise misrepresent its affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any User Content transmitted through the Product;
(e) upload, post, or otherwise transmit any User Content that Licensee does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships, or under nondisclosure agreements);
(f) upload, post, or otherwise transmit any User Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
(g) upload, post, or transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, including but not limited to(i) sending mass email to recipients who have not requested email from Licensee or with a fake return address, (ii) promoting a site with inappropriate links, titles, descriptions, or (iii) promoting Licensee’s site by posting multiple submissions in public forums that are identical;
(h) upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) interfere with or disrupt the Product or servers or networks connected to the Product, or disobey any requirements, procedures, policies, or regulations of networks connected to the Product;
(j) intentionally or unintentionally violate any applicable local, state, national, or international law;
(k) harass another;
(l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals;
(m) post any User Content that Licensee do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations;
(n) use the Account website as a redirecting/forwarding Product to another website;
(o) exceed the scope of the Product that Licensee has signed up for; for example, accessing and using the tools that Licensee or its Authorized Users do not have a right to use, or having humans share user logins, or deleting, adding to, or otherwise changing other people’s comments or content as an Account holder.
If any Licensee, Authorized User, or any other user is reported to be in violation with the letter or spirit of these terms, Khorus retains the right to terminate such Account at any time without further warning.
6. Additional Prohibited Actions. Licensee and Authorized Users agree the following actions, along with others listed in the Agreement, are strictly prohibited and in violation of this Agreement: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Product; (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Product; (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding, or attempting to hide your identity; (v) interfering with the proper working of the Product; or, (vi) bypassing the measures we may use to prevent or restrict access to the Product.
7. PROFESSIONAL SERVICES. If Licensee elects to purchase Khorus’s Professional Services as indicated in a valid Khorus sales Order Form, the Purchase Order reflecting such purchase of Professional Services conforming to the sales Order Form shall be project authorization (“Project Authorization”) by Licensee for Khorus to perform the Professional Services subject to the terms and conditions of this Agreement. Khorus shall have no obligation to perform the Professional Services until and unless it accepts a Project Authorization. Licensee shall be responsible for providing Khorus’s representatives with access to qualified Licensee employees and Licensee-controlled software and hardware, and safe access to Licensee's premises, each as required to allow Khorus representatives to perform the Professional Services. Khorus’s representatives will comply with Licensee’s reasonable written rules with respect to Licensee’s premises, provided that such rules and regulations are provided to Khorus before the start of Services. All materials and information used or generated by Khorus in the performance of Consulting Services ("Services Materials"), and all intellectual property rights therein, shall be the sole and exclusive property of Khorus. Khorus grants You a perpetual, non-exclusive, non-transferable license, without the right to sublicense and solely for Licensee’s own internal business operations, to use the Services Materials provided under this Agreement, subject to all of the provisions of this Agreement governing Licensed Software and Documentation, as applicable. The rights to any of Licensee’s preexisting proprietary business information, or results of any compilation thereof, which are used in or result from the Professional Services and Services Materials, shall remain Licensee’s sole property. All Professional Services must be used by Licensee within twelve months after the date of the relevant Project Authorization and there will be no refunds provided for amounts pre-paid for Professional Services, or any portion thereof, not used within the applicable twelve month period. All Professional Services are non-cancelable and non-refundable.
8. Term and Termination of Service. This Agreement commences on the date Licensee accepts it and continues until all Plan Terms (or in the case of evaluation of Beta programs, until the applicable evaluation or Beta period) granted in accordance with this Agreement have expired or been terminated in accordance with this Agreement. Khorus may terminate a Plan Term, use of the Product, terminate this Agreement, or suspend or terminate Licensee’s or any Authorized User’s Account without notice or liability if, in its sole discretion, Khorus believes Licensee or Authorized User has violated any terms of this Agreement. Licensee may terminate a Plan Term or this Agreement for convenience upon thirty (30) days prior written notice to Khorus and, only in the event of a termination by Licensee for convenience, Licensee shall receive a pro-rated refund for any unused, pre-paid fees for the remainder of the relevant terminated Plan Term. Upon any termination, the license to use the Product shall terminate as of the effective date of the termination. In the event of suspension or any termination, the Account will be disabled and the right to access or use the Product shall terminate. Further Licensee and/or Authorized Users may not be granted access to the Account or any files or other User Content contained in the Account, and we may delete the User Content, although residual copies of information may remain in our system for some time for back-up purposes. In the event of termination, we may also withdraw and reallocate the public web address related to the Account. Upon expiration or termination for any reason, Licensee and all Authorized Users continue to be bound by the terms of this Agreement.
9. Fees and Payment for Full Use of the Product; Professional Services Fees and Expenses
(a) Fees. Licensee shall pay all fees specified in the Order Form and related invoice. The fees for the Product are based on access to the Product purchased pursuant to the relevant Order Form and not actual usage. Professional Services fees are pre-paid in advance of the actual performance of such services. Except as specifically set forth in this Agreement, payment obligations are non-cancellable, fees paid are non-refundable, and the number of user plans purchased cannot be decreased during the relevant Plan Term stated on the applicable Order Form. User plan fees are annual based on monthly periods that begin on the Plan start date and each monthly anniversary thereof; therefore, fees for user plans added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Plan Term. Additionally, Licensee shall pay all fees specified in the Order Form and related invoice for professional services, and expenses.
(b) Invoicing and Payment. Licensee will provide Khorus with a signed Order Form, valid purchase order or alternative purchase document reasonably acceptable to Khorus for the purchase of access to the Product. Khorus will invoice Licensee annually in advance for access to the Product and in advance for Professional Services unless stated otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt of the relevant Khorus invoice and access to the Product will not begin for the initial term or, in the case of renewals, continue for another term until the relevant invoice is paid by Licensee. Licensee is responsible for providing complete and accurate billing and contact information to Khorus and notifying Khorus of any changes to such information.
(c) Professional Services Expenses. Khorus will submit to Licensee an invoice for reimbursement of reasonable travel and lodging expenses, including meals, incurred by Khorus’s Professional Services consultants in the provision of Professional Services purchased by the Licensee under this Agreement. Khorus will abide by Licensee’s travel/expense policy so long as such policy is provided in advance of the provision of Professional Services by Khorus to the Licensee.
(d) Taxes. The fees for the Product and/or Professional Services do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, "Taxes"). Licensee are responsible for paying all Taxes associated with purchases of access to the Product. If Khorus has the legal obligation to pay or collect Taxes for which Licensee is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Khorus with a valid tax exemption certificate authorized by the appropriate taxing authority.
(e) Overdue Charges/Suspension of Access to Product/Acceleration. If any fees or charges are not paid by the due date, Khorus may charge late interest of 1.5% of the past due balance per month or the maximum rate allowed by law, whichever is lower, from the date when such payments are due and payable as provided herein to the date of payment. If any amount owed by Licensee under this Agreement for access to or use of the Product or Professional Services is seven (7) days or more days overdue, Khorus may, without limiting its other rights and remedies, accelerate Licensee’s unpaid fee obligations under this Agreement such that all such obligations become immediately due and payable, and suspend, without liability on the part of Khorus, use and access to the Product to Licensee and its Authorized Users until such amounts are paid in full. Licensee shall pay on demand all of Khorus’s reasonable attorney fees and other costs incurred by Khorus to collect any fees or charges due to Khorus under this Agreement following its breach of this Section 9.
(f) Audit. Khorus, or a third party designated by Khorus, may audit Licensee and its Authorized Users access and use of the Product to verify compliance with the provisions of this Agreement. Such audit will be conducted during normal business hours, on reasonable advance notice and in a manner that does not unreasonable interfere with Licensee’s business operations.
III. ACCOUNT INFORMATION FROM THIRD-PARTY SYSTEM OR SOFTWARE
Licensee may direct Khorus, via its Product, to retrieve certain information maintained online by a third-party service or software providers with which Licensee has a customer relationship or maintains an account (“Third- Party Content”). Licensee agrees to provide its username, password and other log-in information and credentials necessary to access its account with such providers (“Third-Party Access”), and hereby grant us permission to use the Third-Party Content and Third-Party Access for the purposes contemplated by the Product and this Agreement.
By using the Product and providing Licensee’s Third-Party Access, Licensee expressly authorize Khorus to access and use its Third-Party Content maintained by identified third parties, on Licensee’s behalf as Licensee’s agent. You hereby authorize Khorus to use Licensee’s Third-Party Access to accomplish the foregoing and to configure the Product so that it is compatible or integrated with the related Third-Party Content. LICENSEE AND AUTHORIZED USERS ACKNOWLEDGE AND AGREE THAT WHEN KHORUS ACCESSES AND RETRIEVES ACCOUNT INFORMATION FROM THIRD-PARTY SITES, KHORUS IS ACTING AS LICENSEE’S AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. Licensee and its Authorized Users acknowledge and agree that the Product may not be sponsored or endorsed by the third party services accessible through the Product. Licensee represents and warrants that neither the foregoing (or anything else in the Agreement) nor its or its Authorized Users use of the Product will violate any agreement or terms to which you are subject, including without limitation, those with respect to any third-party site. We do not guarantee that any such third-party services will continue to be made available within the Product, and such services may be removed or disabled by Khorus at any time without notice to Licensee or its Authorized Users.
IV. KHORUS’S PROPRIETARY & INTELLECTUAL PROPERTY RIGHTS
The Khorus website, registries, services deliverables, Product and its materials, including, without limitation, software, databases, all raw, gross or compiled statistical information and other data obtained, assembled or developed by Company, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the “Khorus Content”), and all proprietary rights related thereto, are the exclusive property of Khorus and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and Licensee and its Authorized Users shall not reverse engineer, reverse compile, disassemble, or in any way attempt to derive the source code of the Product. Licensee and its Authorized Users further agree that they shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from any materials or content accessible on the Product. Use of the Khorus Content or materials on the Product for any purpose not expressly permitted by this Agreement is strictly prohibited. In the event of a violation of any of the above provisions, Khorus may terminate this Agreement in its sole discretion.
Licensee or its Authorized Users may choose to submit comments, feedback or ideas about the Product, including without limitation about how to improve the Product or our products (“Ideas”). By submitting any Ideas, Licensee affirms that such disclosure of Ideas is gratuitous, unsolicited, and without restriction and will not place Khorus under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to Licensee or its Authorized Users. Licensee and its Authorized Users acknowledge that, by acceptance of their submission, Khorus does not waive any rights to use similar or related ideas previously known to Khorus, or developed by its employees, or obtained from sources other than Licensee or Authorized Users. Khorus is a trademark of Khorus Software, LLC.
V. EXPORT RESTRICTIONS
Licensee and Authorized Users acknowledge that the Product, or portion thereof, may be subject to the export control laws of the United States. Licensee and Authorized Users will not export, re-export, divert, transfer, or disclose any portion of the Product or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
VI. INJUNCTIVE RELIEF
Licensee and Authorized Users acknowledge that any use of the Product contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Product, may cause irreparable injury to Khorus, its affiliates, suppliers and any other party authorized by Khorus to resell, distribute, or promote the Product (“Resellers”), and under such circumstances Khorus, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.
VII. GENERAL PRACTICES REGARDING USE
Licensee and Authorized Users agree that Khorus has no responsibility or liability for the deletion of, or the failure to store or to transmit, any User Content, Third-Party Content and other communications maintained by the Product. Licensee and Authorized Users acknowledge that Khorus may establish general practices and limits concerning use of the Product and may modify such practices and limits from time to time. Khorus retains the right to create limits on use and storage at our sole discretion at any time with or without notice. Licensee and Authorized Users acknowledge that we reserve the right to log off users who are inactive for an extended period of time.
VIII. INTERNATIONAL USE
Recognizing the global nature of the Internet, Licensee and Authorized Users agree to comply with all local rules regarding online conduct and acceptable User Content. Specifically, Licensee and Authorized Users agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which Licensee and Authorized Users reside.
IX. NO RESALE OF THE PRODUCT
Licensee and Authorized Users agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Product, use of the Product, or access to the Product without the express permission by Khorus.
X. LICENSEE AND AUTHORIZED USER REPRESENTATIONS AND WARRANTIES
Licensee and Authorized Users represent and warrant that (a) all of the information provided by Licensee and Authorized Users to Khorus to use the Product is correct and current; and (b) Licensee and Authorized Users have all necessary right, power and authority to enter into this Agreement, provide User Content and to perform the acts required of Licensee and Authorized Users hereunder.
XI. NO WARRANTIES OR REPRESENTATIONS BY COMPANY
LICENSEE UNDERSTAND AND AGREE THAT THE PRODUCT IS PROVIDED “AS IS” AND KHORUS, ITS AFFILIATES, SUPPLIERS AND RESELLERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OR BAILMENT OF ITS DATA ON KHORUS’S SERVERS. KHORUS, ITS AFFILIATES, SUPPLIERS, AND RESELLERS MAKE NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PRODUCT, THE SECURITY OF THE PRODUCT, OR THAT THE PRODUCT WILL MEET ANY LICENSEE, AUTHORIZED USERS OR USER’S REQUIREMENTS. USE OF THE PRODUCT IS AT ITS SOLE RISK. LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE OR ITS AUTHORIZED USERS OR USERS RESULTING FROM THE USE OF THE PRODUCT. THE ENTIRE RISK ARISING OUT OF USE, SECURITY OR PERFORMANCE OF THE PRODUCT REMAINS WITH LICENSEE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KHORUS OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF KHORUS’S OBLIGATIONS. WITHOUT LIMITING THE FOREGOING, THE PRODUCT IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, KHORUS, ITS AFFILIATES, SUPPLIERS AND RESELLERS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
XII. LIMITATION OF LIABILITY
IN NO EVENT WILL KHORUS OR ITS AFFILIATES, SUPPLIERS, OR RESELLERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS OR DAMAGE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT PRODUCT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE) CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF KHORUS, ITS AFFILIATES, SUPPLIERS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, KHORUS’S, ITS AFFILIATES’, SUPPLIERS’ AND RESELLERS’ MAXIMUM CUMULATIVE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE PRODUCT (IF ANY) IN THE PREVIOUS TWELVE (12) MONTHS.
Licensee shall indemnify, defend and hold harmless Khorus, its affiliates, officers, directors, employees, consultants, agents, suppliers, and Resellers from any and all third party claims, liability, damages and/or costs (including, but not limited to, attorney’s fees as and when incurred) arising from Licensee’s and/or its Authorized Users’ use of the Product, use of the Account, violation of this Agreement or the infringement or violation by Licensee or any Authorized User of the Account, of any intellectual property or other right of any person or entity.
XIV. MODIFICATIONS TO OR DISCONTINUATION OF THE PRODUCT
Khorus reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Product (or any part thereof) with or without notice. Khorus shall not be liable to Licensee, Authorized Users or to any third party for any modification, suspension, termination, or discontinuance of the Product.
Neither Licensee nor Khorus may issue press releases relating to the Agreement without approving the content with the other party. Khorus may include Licensee’s name and logo in lists of customers used in print, marketing materials or online.
XVI. NO AGENCY
No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship between Licensee and Khorus is intended or created by this Agreement.
XVII. WAIVER AND SEVERABILITY
Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
XVIII. STATUTE OF LIMITATIONS
Licensee agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Khorus Product or the Terms of Service must be filed by Licensee within one (1) year after such claim or cause of action arose or be forever barred.
XIX. CHOICE OF LAW AND FORUM
This Agreement shall be governed by and construed under the laws of the State of Texas, USA, as applied to agreements entered into and to be performed in Texas by Texas residents. The parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Travis County Texas, USA.
XX. ENTIRE AGREEMENT
This Agreement embodies the entire understanding and agreement between the parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the parties respecting such subject matter. Khorus may change the terms of this Agreement at any time by posting modified terms on its website. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purposes. Any and all rights and remedies of Khorus upon Licensee’s or its Authorized Users’ breach or other default under this Agreement will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity on Khorus and the exercise of any one remedy will not preclude the exercise of any other. The captions and headings appearing in this Agreement are for reference only and will not be considered in construing this Agreement. Notices to Licensee may be made via either email or regular mail. The Product may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices to Licensee generally on the Product. All notices or other correspondence to Khorus under this Agreement must be sent to the following electronic mail address: firstname.lastname@example.org or write to us at:
2016 Khorus Software, LLC 8012 Bee Cave Road Austin, Texas 78746 USA