License Grant & Restrictions

Konnected Koncepts hereby grants you a non-exclusive, non-transferable (other than in connection with a permitted assignment pursuant to Section 20) worldwide right to access and use the Service, solely for your own lawful business purposes in accordance with the terms and conditions of the Agreement. The Users are authorized to exercise the rights granted to you in this Section 2. All rights not expressly granted to you are reserved by Konnected Koncepts and its licensors. As used herein, the term “Service” shall include any update, upgrade or new version of the Service released by Konnected Koncepts during the Initial Term and any renewal term thereof, which shall be provided to you at no additional cost. You may not access the Service if you or any of your Affiliates is/are a direct competitor of Konnected Koncepts, except with Konnected Koncepts’ prior written consent, which may be refused in its absolute discretion. In addition, you may not access the Service for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes. You shall not, except as expressly permitted in the Agreement:

1. License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party, whether for remuneration or not, the Service or the Content in any way;
2. Modify or make derivative works based upon the Service or the Content;
3. Create external internet “links” to the Service or “mirror” any Content on any other server or wireless or Internet-based device; or
4. Reverse engineer or access the Service in order to (a) build a competitive product or service,
5. Build a product using similar ideas, features, functions, or graphics of the Service, and/or (c) copy any ideas, features, functions, or graphics of the Service.

You may use the Service only for your own lawful business purposes and, without limitation, shall not:

1. Send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
2. Send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including, without limitation, material harmful to children or violative of third-party privacy rights;
3. Knowingly send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs;
4. Knowingly interfere with or disrupt the integrity or performance of the Service or the software contained therein;
5. Attempt to gain unauthorized access to the Service or its related systems or networks; or
6. Use the Service as a service bureau or allow the use of the Service or the software contained therein by or on behalf of third parties, except as specifically permitted in the Agreement.

Your Responsibilities

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with your use of the Service, including those related to data privacy, local, national, and international DoNotCall Registries (DNC), Communication Spam Laws (including but not limited to CAN-SPAM in the USA or CASL in Canada), international communications, and the transmission of technical or personal data. You shall:

1. promptly notify Konnected Koncepts of any unauthorized use of any password or account or any other known or suspected breach of security;
2. report to Konnected Koncepts and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and
3. not impersonate another Konnected Koncepts user or provide false identity information to gain access to or use the Service.

You are responsible for ensuring that your use of the Site and the Products does not generate an excessive number of spam or other complaints beyond industry norms. Konnected Koncepts may terminate your access to or use of the Site and the Products if we determine that your level of spam or other complaints is higher than industry norms, as determined in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Products or file a spam report against you.

The Site and the Products shall only be used for lawful purposes, and you shall use the Site and the Products only in compliance with this Agreement and all other applicable U.S., state, local, and international laws in your jurisdiction, including:

- the CAN-SPAM Act;
- Canada's Anti-Spam Legislation;
- any policies and laws related to unsolicited SMS (TEXT) Messages, emails, spamming, privacy, copyright, and trademark infringement;
- laws relating to advertising, sales or promotional efforts or practices, redemption, refunds, and provision of your products or services;
- laws that govern false, unfair, and deceptive practices, coupons, gift cards/certificates, defective products or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards;
- laws that govern lotteries, sweepstakes, contests, and promotions; and
- laws that govern the collection of donations and charitable giving.

You are responsible for determining whether our Site or Products are suitable for you to use in light of any regulations, such as the Health Insurance Portability and Accountability Act ("HIPAA"), European data privacy laws, or other laws. If you are subject to a particular regulation and you use our Site or Products, then Konnected Koncepts will not be liable if our Site or Products do not meet those requirements.

Intellectual Property

Konnected Koncepts shall own all rights, titles, and interests relative to features developed by Konnected Koncepts (the “Developments”) immediately upon their creation, regardless of their level of completion. The Client hereby irrevocably grants, transfers, and assigns to Konnected Koncepts all rights, titles, and interests, as applicable, in all Developments, including translation and reproduction rights in any form or format whatsoever, and any related intellectual property rights, and the Client agrees that Konnected Koncepts may register copyrights relative to these materials in the name of Konnected Koncepts and renew, reissue, or extend such copyrights for any period permitted by law.

Third-Party Interactions

During use of the Service, you may purchase or subscribe to goods and/or services from third-party providers. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, are solely between you and the applicable third-party. Konnected Koncepts and its licensors shall have no liability, obligation, or responsibility for any relationship between you and any such third-party. Konnected Koncepts does not endorse any third-party software or services.
Konnected Koncepts provides Application Programming Interfaces (API) only as a matter of integration needs, and in no event shall Konnected Koncepts be responsible for any issue relating to third-party integration. Konnected Koncepts provides the Service to you pursuant to the terms and conditions of the Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware, or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware, or services.

Charges and Payment of Fees

You shall pay all fees or charges to your account in accordance with the fee schedule set forth in the Acceptance Form. You are responsible for paying for the service ordered for the entire License Term and for the entire number of licenses purchased, whether or not the Service is actively used unless non-use is based on continuous unavailability of the Service. Added services based on the increase of Members will be subject to the following:

1. Added services will be coterminous with the pre-existing License Term (either Initial Term or renewal term);
2. The license fee for the added services will be agreed upon between you and Konnected Koncepts and reflected in a written Acceptance Form; and
3. Services added in the middle of a billing month will be charged in full for that billing month.

All pricing terms are confidential, and you agree not to disclose them to any third party other than to your attorneys and advisors.

Billing; Renewal and Other Fees

Konnected Koncepts charges and collects in advance for use of the Service. Konnected Koncepts will invoice you annually or as otherwise mutually agreed upon in writing. The renewal charge for each Acceptance Form shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall be based on changes in Location or Membership Price Level. You will pay for travel and out-of-pocket expenses incurred by Konnected Koncepts, provided that any such expenses have been pre-approved by you in writing and are incurred due to a legitimate need to staff the project with Konnected Koncepts personnel from outside of your geographical area. Fees for other services will be charged as agreed upon in writing by you and Konnected Koncepts. Konnected Koncepts’ fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Konnected Koncepts’ income. You agree to provide Konnected Koncepts with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name of an authorized billing contact. You agree to update this information within 30 days of any change to it. If you believe your bill is incorrect, you must contact us in writing. Any dispute regarding an invoice must be sent to Konnected Koncepts within 30 days of the date of the invoice and shall include the amount in question and the reasons why you allege that the invoice is incorrect. Failure to raise a dispute within this period will mean that the invoice shall be deemed to be correct and accepted by you.

Non-Payment and Suspension

In addition to any other rights granted to Konnected Koncepts herein, Konnected Koncepts reserves the right to suspend or terminate the Agreement and your access to the Service if your account becomes delinquent (falls into arrears) and any amounts due are not paid within ten days of your receipt of a notice of non-payment from Konnected Koncepts. Notwithstanding the foregoing, Konnected Koncepts reserves the right to suspend or terminate the Agreement and your access to the Service upon thirty (30) days’ notice if your account becomes delinquent and if two (2) or more consecutive payments or three (3) or more payments within any twelve-month period are not paid when due. Konnected Koncepts reserves the right to impose a reconnection fee in the event the Agreement is suspended and you thereafter request access to the Service, provided that it shall be a requirement of any reconnection that you shall have cured all monetary defaults.

Termination upon Expiration

The Agreement commences on the Effective Date. The Initial Term will be as mutually agreed upon in an Acceptance Form. Upon the expiration of the Initial Term, the Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term for a fee determined in accordance with Section 7 above. Either party may terminate the Agreement effective only upon the expiration of the then-current License Term; provided that written notice of intent to terminate must be provided (i) by Konnected Koncepts to you at least ninety (90) days prior to the last day of the then-current License Term, and (ii) by you to Konnected Koncepts at least ninety (90) days prior to the last day of the then-current License Term.
In the event that the Agreement is terminated (other than by reason of your non-payment), Konnected Koncepts will return to you a file of the Customer Data in a machine-readable, non-proprietary format suitable for use on a personal computer within (i) 30 days of termination if you so request at the time of termination, if terminated by you, or (ii) 30 days if you so request within 30 days of termination if terminated by Konnected Koncepts. In the event that Konnected Koncepts terminates the Agreement as a result of your breach and you cure such breach within ninety (90) days of the termination, Konnected Koncepts will return to you a file of the Customer Data within thirty (30) days of your request thereafter at its then-current rates for such services and after settling any outstanding payments.
Notwithstanding any of the provisions of the Agreement, you agree and acknowledge that, other than as specifically set forth therein, Konnected Koncepts has no obligation to retain the Customer Data and may delete such Customer Data after the periods referred to in the two immediately preceding sentences, as applicable.

Termination for Cause

Without limitation, any breach of your payment obligations uncured within 30 days of receipt of notice thereof or your unauthorized use of the Konnected Koncepts Service will be deemed a material breach of the Agreement. Konnected Koncepts, in its sole discretion, may terminate the Agreement, your password, account, and/or use of the Service if you breach or otherwise fail to comply with the Agreement and such breach remains uncured for more than 30 days following your receipt of notice thereof. In addition, Konnected Koncepts may terminate a free account at any time in its sole discretion. You may terminate the Agreement if Konnected Koncepts breaches or otherwise fails to comply with the Agreement and such breach remains uncured for more than 30 days following Konnected Koncepts’ receipt of notice thereof. In the event of such termination, you will not be responsible for any fees payable following the effective date of such termination but will be responsible for paying any fees payable up to the date of such termination.

Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into the Agreement. Konnected Koncepts represents and warrants that it will provide the Service in a good and workmanlike manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the Konnected Koncepts Service Level Agreement under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

Mutual Indemnification

You shall indemnify, defend, and hold Konnected Koncepts, its licensors, and each such party’s current, future, and former Affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with:

1. A claim alleging that Konnected Koncepts’ authorized use of the Customer Data infringes the rights of, or has caused harm to, a third party;
2. A claim, which if true, would constitute a violation by you of your representations and warranties; or
3. A claim arising from the breach by you or your Users of the Agreement.

Konnected Koncepts shall indemnify, defend, and hold you and your current, future, and former Affiliates, Users (other than brokers), officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with:

1. A claim alleging that the Service, or your authorized use thereof, directly infringes or misappropriates the rights (including intellectual property rights) of, or has caused harm to, a third party;
2. A claim, which if true, would constitute a violation by Konnected Koncepts of its representations or warranties; o
3. A claim arising from a breach of the Agreement by Konnected Koncepts.

Disclaimer of Warranties

KONNECTED KONCEPTS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. KONNECTED KONCEPTS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED, LICENSED, OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED BY KONNECTED KONCEPTS AND ITS LICENSORS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Konnected Koncepts Hosting Service Level Agreement (“HSLA”)

Konnected Koncepts will ensure that the Software is available for Customer’s use no less than ninety-nine percent (99.9%) of the time, seven days a week, 365 days a year, measured on a calendar month basis, except for scheduled downtime periods. This service level is detailed in the HSLA.

Limitation of Liability

IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE SERVICE, ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, OR ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Local Laws and Export Control

The Service and the software and technology used in connection therewith may be subject to U.S. export controls. You agree to comply strictly with all applicable export laws.

Notice

Konnected Koncepts may give notice to you by written communication sent by registered mail or by email to your address or email address, as the case may be, on record in Konnected Koncepts’ account information. You may give notice to Konnected Koncepts at any time by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail.

Modification

Konnected Koncepts may amend this Agreement from time to time due to changes to the Site or the Products, to account for developments under the law, or for any other commercially reasonable reason.

Assignment; Change in Control

The Agreement may not be assigned by you without the prior written approval of Konnected Koncepts. The Agreement may be assigned by Konnected Koncepts without your consent.

General

This Agreement shall be governed by [your local state’s laws], without regard to conflicts of law provisions of any jurisdiction. Any disputes shall be subject to the exclusive jurisdiction of the courts of [your local state].

Survival

Sections 1, 4, 12, 13, and 15 of these Terms of Service shall survive any expiration or termination of the Agreement.

Definitions

As used in these Terms of Service and in any Acceptance Forms now or hereafter associated herewith:

• “Acceptance Form(s)” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted in written form, specifying the services contracted for, the applicable fees, and other charges.
• “Affiliate” means a corporation or other entity directly or indirectly controlled by you or which controls you or is under common control with you.
• “Agreement” means the agreement between the parties constituted by these Terms of Service and any Acceptance Form.
• “Content” means the audio and visual information, documents, software, products, and services available in the course of using the Service.
• “Customer Data” means any data, information, or material provided or submitted by you to the Service.
• “Effective Date” means the earlier of the date these Terms of Service are accepted or the date you begin using the Service.
• “Initial Term” means the contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Acceptance Form.
• “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, and other trade secret rights.
• “License Administrator(s)” means those Users designated by you who are authorized to purchase services.
• “License Term(s)” means the period(s) during which Users are licensed to use the Service pursuant to the Acceptance Form(s).
• “Service” means the edition of Konnected Koncepts’ services identified during the ordering process, including any updates or upgrades, operated and maintained by Konnected Koncepts, accessible via www.justkonnect.com or other designated web addresses.