DONE MASTER SUBSCRIPTION TERMS AND CONDITIONS
THESE MASTER SUBSCRIPTION TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT AND GOVERN YOUR FREE TRIAL, ACCESS, AND USE OF DONE.
BY ACCEPTING THESE TERMS AND CONDITIONS, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY PROCEEDING TO ACCESS OR USE THE SERVICES, YOU (“CUSTOMER”) AGREE TO THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "CUSTOMER" OR "CUSTOMER’S" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS AND CONDITIONS AND MAY NOT USE THE SERVICES.
If Customer is a direct competitor of Kinetic Growth, Customer may not access the Services unless Kinetic Growth provides prior written consent. Customer also may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
These terms and conditions were last updated on June 10, 2014. They are effective between Customer and Kinetic Growth as of the date accepted by Customer as described above.
1. DEFINITIONS
"Agreement" means these Master Subscription Terms and Conditions, information contained in a Kinetic Growth URL or policy referenced in the foregoing and such other documents, attachments and exhibits that the parties' authorized representatives may mutually agree to from time to time.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control", for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Content" means the information, documents, software, products and/or services contained or made available to Customer in the course of using the Services.
"Customer Data" means all electronic data or information submitted by or on behalf of Customer or Users to the Services.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Purchase Schedule" means the ordering documents for Customer's purchases from Kinetic Growth that may be executed by the parties from time to time.
“Purchased Services” means Services that Customer or Customer’s Affiliate(s) purchase under a Purchase Schedule, as distinguished from those provided pursuant to a free trial.
"Services" means the online, Web-based application “Done” and Content provided by Kinetic Growth, including any associated offline components but excluding Third Party Applications.
"Third-Party Applications" means online, Web-based applications and platforms and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications, including but not limited to those provided to Customer by salesforce.com under a separate agreement between Customer and saleforce.com.
"User Guide" means the online user guide for the Services, accessible via the Help menu in the Services, as updated from time to time.
"Users" means individuals who are authorized by Customer to use the Services, for whom trial subscriptions to a Service have been obtained from Kinetic Growth, and who have been supplied user identifications and passwords by Customer (or by Kinetic Growth at Customer's request). Users may include but are not limited to employees, consultants, contractors and agents of Customer, or third parties with whom Customer transacts business.
2. FREE TRIAL
Kinetic Growth will make the Services available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer registered or is registering to use the Services or (b) the start date of any Purchased Services ordered by Customer. Additional trial terms and conditions may appear on the trial registration documentation. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY CUSTOMER DATA ENTERED INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORTS SUCH CUSTOMER DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER CUSTOMER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT ITS CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR THE CUSTOMER DATA WILL BE PERMANENTLY LOST.
Please review the User Guide during the trial period to become familiar with the features and functions of the Services before purchase of the Services.
3. USE OF THE SERVICES
3.1 Customer Responsibilities. Customer shall (i) be responsible for Users' compliance with this Agreement, including but not limited to the Acceptable Use set forth below; (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Kinetic Growth promptly of any such unauthorized access or use; and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Services available to any third party other than Users, (b) sell, resell, rent, lease, license, sublicense, assign, transfer, distribute, time-share or otherwise exploit the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or network.
3.2 Acceptable Use. Customer acknowledges and agrees that Kinetic Growth does not monitor or police the content of communications or data of Customer or its Users uploaded in or transmitted through the Services, and that Kinetic Growth shall not be responsible for the content of any such communications or transmissions. Customer shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer agrees not to load into the Services any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains viruses or other contaminating or destructive features; (c) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law (including, without limitation, the laws and regulations governing unfair competition). Kinetic Growth reserves the right to delete, move or edit any Customer Data that it may determine, in its sole discretion, violates this Agreement or is otherwise inappropriate.
4. THIRD-PARTY APPLICATIONS
4.1 Acquisition of Third-Party Products and Services. Any acquisition by Customer of third-party products or services, including but not limited to Third-Party Applications, implementation, customization and other consulting services, and any exchange of data between Customer and any third-party provider, is solely between Customer and the applicable third-party provider. Kinetic Growth does not warrant or support third-party products or services, whether or not they are designated by Kinetic Growth as "certified" or otherwise, except as specified in the Purchase Schedule.
4.2 Third-Party Applications and Customer Data. If Customer installs or enables third party components, including Third Party Applications, for use with the Services, Customer acknowledges that Kinetic Growth may allow providers of those products to access Customer Data as required for the interoperation of such products with the Services. Kinetic Growth shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third-Party Application providers.
5. PROPRIETARY RIGHTS
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Kinetic Growth and its licensors reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.2 Restrictions. Customer shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivative works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Customer's own intranets or otherwise for its own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
5.3 Ownership of Customer Data. As between Kinetic Growth and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer grants Kinetic Growth and its subcontractors a limited, personal, transferable, non-exclusive license to use the Customer Data for the sole purpose, and solely as required, to perform the Services.
5.4 Suggestions. Kinetic Growth shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Services.
5.5 Federal Government End Use Provisions. Kinetic Growth provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Kinetic Growth or the third party vendor to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
6. CONFIDENTIALITY
6.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer shall include Customer Data; Confidential Information of Kinetic Growth shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Customer Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein
6.3 Protection of Customer Data. Without limiting the above, Kinetic Growth shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Kinetic Growth shall not (a) modify Customer Data, (b) disclose Customer Data except as compelled by law in accordance with the "Compelled Disclosure" section below or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at Customer's request in connection with customer support matters.
6.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES AND DISCLAIMERS
7.1 Kinetic Growth Warranties. DURING THE FREE TRIAL, THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
7.2 Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will use industry standard methods to prevent the transmission to the other party of any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY AND THEIR LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. Customer acknowledges that Kinetic Growth does not control the transfer of data over telecommunications facilities, including the Internet. Kinetic Growth does not warrant secure operation of the Services or that it will be able to prevent third party disruptions of the Services. Customer acknowledges further that the Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Kinetic Growth is not responsible for any delays, delivery failures, or other damage resulting from such problems.
8. LIMITATION OF LIABLITY
8.1 Limitation of Liability. EXCEPT FOR VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $500,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY OR THEIR LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUES, DATA, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SAME OR FOR ANY CONTENT, OR ANY INTERRUPTION IN THE SERVICE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9. GENERAL
9.1 Surviving Provisions. The sections titled "Proprietary Rights," "Confidentiality," "Warranties and Disclaimers," "Limitation of Liability," and "General Provisions" shall survive any termination or expiration of this Agreement.
9.2 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each of Kinetic Growth and Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use the Services in violation of any U.S. export embargo, prohibition or restriction.
9.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
9.4 No Third-Party Beneficiaries. This Agreement is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party.
9.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
9.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
9.8 Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Illinois, without regard to its conflicts of laws rules. The parties agree that this contract is not a contract for the sale of goods; therefore, this Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any references to the Uniform Computer Information Transactions Act or the United Nations Convention on the International Sale of Goods.
9.9 Venue; Waiver of Jury Trial. The state and federal courts located in Cook County, Illinois shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
9.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Purchase Schedules) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
9.11 Compliance. During the term of this Agreement and for a period of one (1) year following its termination, Kinetic Growth and its suppliers reserve the right, during Customer's normal business hours, to audit Customer's use of the Services to verify compliance with this Agreement. Customer shall maintain and make available to Kinetic Growth records sufficient to permit Kinetic Growth or an independent auditor retained by Kinetic Growth to verify, upon ten (10) days' written notice, Customer's compliance with the terms and requirements of this Agreement. In the event that any audit reveals any non-compliance, including but not limited to underpayment of fees in excess of 10% during any one year period, Customer shall promptly cure the non-compliance, pay Kinetic Growth any shortfall at Kinetic Growth's then current list price and reimburse Kinetic Growth the reasonable costs of such audit, provided, however, that the obligations under this Section 9.11 do not constitute a waiver of Kinetic Growth’s termination rights or any other rights hereunder.
9.12 Force Majeure. Neither party shall incur any liability to the other party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the party seeking protection under this Section 9.12. Such events, occurrences, or causes shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire or explosions.
