Khorus Software LLC
Terms of Service for Product and Support
Effective Date: April 3, 2020
IMPORTANT — READ CAREFULLY: WELCOME TO WWW.KHORUS.COM AND OUR RELATED WEB-BASED AND/OR MOBILE APPLICATION PROVIDED AS AN ONLINE SERVICE (“PRODUCT”) AND BASIC AND ENTERPRISE TECHNICAL SUPPORT FOR THE PRODUCT (“SUPPORT”). KHORUS ALSO PROVIDES CONSULTING SERVICES RELATED TO THE PRODUCT (“PROFESSIONAL SERVICES”). IT IS IMPORTANT LICENSEE UNDERSTANDS THAT LICENSEE’S AND ITS AUTHORIZED USERS’ USE OF THE PRODUCT, SUPPORT, 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 ACCESSING OR USING THE KHORUS PRODUCT, SUPPORT, OR PROFESSIONAL SERVICES, THE LICENSEE AND ITS AUTHORIZED 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.
Khorus reserves the right to modify this Agreement, in its sole discretion, at any time by posting an amended Agreement that is always accessible on the Khorus website home page and by giving Licensee prior notice of such modifications. Licensee’s continued use of the Product, Support and/or Professional Services after notice of a modification indicates Licensee’s acceptance of the modified Agreement on behalf of itself and the Licensee’s Authorized Users. It is the responsibility of the Licensee and its Authorized Users to periodically check this Agreement via the home page link for modifications and their effective dates. Khorus may give notice to Licensee and its Authorized Users by means of (i) a general notice in the Product account, (ii) by email to the e-mail address on record in Licensee’s registration information for the Licensee, or (iii) by notice of modification to the Agreement on the Khorus homepage.
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, Support, or Professional Services if the Licensee or the Authorized User does not agree with the terms of this Agreement. By using the Product, Licensee and Authorized Users signifies their irrevocable acceptance of this Agreement. The website, Product, Support, Professional Services, 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 AND SUPPORT
- 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 allowing Licensee and Authorized Users access to and use of a single Khorus account for whatever period that Khorus chooses, in its sole discretion to make the Product and relevant Support available. 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, Licensee and Authorized Users are responsible for all equipment and internet access necessary on their part to access the Product.
- The Product includes communications from Khorus that include Product and Support 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 PRODUCT
1. REGISTRATION REQUIRED.
In order to use the Product and Support, Licensee and Authorized Users will need a valid account on the Khorus platform “Account”, which requires that a valid electronic email address and other identifying information be provided to Khorus for each Licensee and Authorized User (“Personal Information”) to access the Account and receive the access to the Product and Support. 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 account 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 18. If an Authorized User is under 18 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 Product Use. Contingent on Licensee’s and Authorized User’s full compliance with the terms and conditions of the Agreement, Khorus grants Licensee and Authorized Users a non-exclusive, non-transferable, limited, revocable right to access and use the Product solely for Licensee’s internal business use for any period in which Khorus makes access to such Product available.
(b) 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 to be determined by Khorus and Licensee will provide us with Ideas subject to the terms and conditions of the Agreement including the following:
(i) 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.
(c) 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.
(d) 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.
3. PRODUCT SUPPORT AND SUPPORT PLANS
Khorus offers various types of Support for the Product, Khorus Free which is a free of charge basic Support included with the Licensee’s access to the Product, and more robust, paid Support plans Khorus Enterprise Support and Khorus Enterprise+ Support. The various Enterprise Support plans are paid Support services available on a per Authorized User basis for 12-month periods.
Khorus, in its sole discretion, may modify or eliminate Khorus Free Support at any time and may modify or eliminate paid Enterprise Support and Enterprise + Support at any time however such modification or elimination will not take effect until after the expiration of the current paid Support plan term.
(i) Khorus Free Support includes access to the Product manual and basic tips for use of the Product via Khorus’s online help website.
(ii) Khorus Enterprise includes all the features of Khorus Free, guidance from Khorus on topics such as goal-setting tips and optimizing use of the Product for the Licensee’s executive team, and allows Authorized Users to log Product errors via e-mail (email@example.com) or via the Khorus online support webpage, and Khorus will respond within a reasonable period of time via e-mail. For each Support request, the Authorized User must 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 Authorized User detected an error. Support hours are 8:00 am to 5:00 PM CST, Monday – Friday, excluding holidays observed by Khorus. Support requests must be submitted in English and Support will be provided in English.
(iii) Khorus Enterprise+ Support includes all the features of Khorus Enterprise Support above as well as the Khorus Kickstart Success program is a paid Support offering separate for Basic Support. Enterprise Support is purchased on a per Authorized User basis and runs for a term of twelve (12) months from the date of purchase.
(iv) All purchases of paid Support plans are billed and invoiced annually, in advance and will automatically renew for additional twelve (12) month terms unless the Licensee informs Khorus in writing at least ninety (90) days prior to the end of the then current Enterprise Support term that it does not wish to renew.
(a) The Product, including all content , components, design, documentation, features, information about trade secrets, strategies, business models, algorithms, software, ideas, Support and Professional Services materials and methodologies, are owned by Khorus or its licensors (collectively, Khorus Confidential Information”) and are protected by United States and international copyright, trademark, patent and other intellectual property or proprietary rights law.
(b) Licensee (including its Authorized Users) shall not disclose or provide the Products, documentation, or any other Khorus Confidential 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.
(c) 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, term of use of the Product and/or Support, or evaluation or beta program period.
5. USER CONTENT.
Under no circumstances will Khorus be liable in any way for any User Content even if such User Content is deemed by the viewer to objectionable or offensive. 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) impersonate any person or entity, including or falsely state or otherwise misrepresent its affiliation with a person or entity;
(c) 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, 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;
(h) bypass measures that Khorus uses to control or restrict access to the Product; 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; attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Product; (ii) take any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) upload invalid data, viruses, worms, or other software agents through the Product;
(i) access the Product by any means other than the interfaces provided by Khorus for use in accessing the Product;
(j) intentionally or unintentionally violate any applicable local, state, national, or international law;
(k) post any User Content that Licensee does not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations;
(L) use the Account website as a redirecting/forwarding Product to another website; or
(m) 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.
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 Licensee 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 USE OF PRODUCT.
(a) This Agreement commences on the date Licensee accepts it by its access or use of the Product and continues until terminated by Khorus (or in the case of evaluation of Beta programs, until the applicable evaluation or Beta period).
(b) Khorus’s termination rights:
- Basic Support Licensee. Khorus may terminate this Agreement and access and use of the Product and Basic Support immediately upon emailed notice to the Licensee at the address provided in its registration for any reason or for no reason, its Khorus’s sole discretion.
- Paid Support Licensee. Khorus may terminate this Agreement and access and use of the Product and Enterprise Support upon emailed notice to the Licensee at the address provided in its registration for any reason or for no reason, in Khorus’s sole discretion. Such termination will be effective upon expiration of the then-current Enterprise Support Term.
- Non-Use of Product by Licensee. If Khorus determines that a Basic Support Licensee’s Authorized Users have not used the Product for a period of 180 days, Khorus may terminate the Licensee’s and its Authorized Users access to the Product and their corresponding accounts.
- Khorus may terminate use of the Product, terminate this Agreement, or suspend or terminate Licensee’s account and access by Licensee and its Authorized Users without notice or liability if, in its sole discretion, Khorus believes Licensee or Authorized User has violated any terms of this Agreement.
(c) Upon any termination, the license to access and use the Product shall terminate as of the effective date of the termination. In the event of suspension or any termination, the Authorized User accounts will be disabled and the right to access or use the Product shall terminate.
(d) Further, post termination, Licensee and/or Authorized Users may not be granted access to their accounts or any files or other User Content contained in the accounts, 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 PAID PRODUCT SUPPORT; PROFESSIONAL SERVICES FEES AND EXPENSES
(a) Fees. Licensee shall pay all fees and expenses specified in the relevant Khorus invoice, as applicable, within thirty (30) days of the date of the invoice. The fees for Enterprise Support plans are based on right of access to the Product pursuant to the relevant Order Form and not actual usage of the Product or the Enterprise Support. Professional Services fees are pre-paid in advance of the actual performance of such services. Licensee is responsible for providing complete and accurate billing and contact information to Khorus and notifying Khorus of any changes to such information.
Except as specifically set forth in this Agreement, payment obligations are non-cancellable, fees paid are non-refundable, and the number of Authorized Users for which Enterprise Support is purchased cannot be decreased during the relevant Enterprise Support plan term stated on the applicable invoice. Fees for Authorized Users added during the Enterprise Support term will be co-termed for the remaining period of the term.
(b) 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.
(c) Taxes. The fees for Enterprise Support and/or Professional Services do not include taxes, if any, 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 its purchases. 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.
(d) Overdue Charges/Suspension of Access to Enterprise Support/Acceleration. If any fees or charges for Enterprise Support 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 Enterprise Support 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 Enterprise Support or Professional Services, as applicable, 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.
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. Licensee hereby authorizes 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. Khorus does 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.
VIII. INTERNATIONAL USE AND DATA PROTECTION
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 AGGREGATE 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.
Khorus may include Licensee’s name and logo in lists of customers used in print, marketing materials, press releases, 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: Khorus Software, LLC 8012 Bee Cave Road Austin, Texas 78746 USA.
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