THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality for any purposes.
This Agreement was last updated on May 18th, 2017. It is effective between You and Us as of the date of You accepting this Agreement.
"Agreement" means this Account Subscription Agreement.
"Account" means a subscription to a Kimoby Pricing Plan that permits a User to access the Services.
"Content" means information obtained by Kimoby from publicly available sources or third party content providers and made available to Customer through the Services, pursuant to an Order Form, as more fully described in the Documentation.
"Documentation" means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as updated from time to time, accessible via help.kimoby.com.
“Kimoby Promotional Materials” means any marketing and/or promotional materials relating to Kimoby and/or Kimoby brands, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the Kimoby brand.
"Order Form" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda, annexes and supplements thereto.
“Services” means the products and services that are ordered by You under an Order Form, and made available online by Us, including associated Kimoby offline or mobile components, as described in the Documentation. "Services" exclude Content and Non-Kimoby Applications. Kimoby is the product of Les Logiciels Kimoby.
"Testimonial" means a recommendation, from a User or a company that uses Our Services, affirming the performance, quality and/or value of Kimoby’s platform.
"User" means an individual who is authorized by You to use a Service, for whom You have subscribed, and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
"Usage" means the use made by users, that includes transmission of an outgoing text message (SMS), automation, targeted campaigns and appointment reminders.
"We", "Us" or "Our" means 852256-1 Canada Corp. (DBA Les Logiciels Kimoby) a Canadian company located at 302-633 Rue Saint-Joseph East, Quebec City, Qc, G1K 3C1.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.
"Your Data" means electronic data and information submitted by or for Customer to the Services, excluding Content and Non-Kimoby Applications.
2. Account terms
To access and use the Services, You must register by providing your full legal name, current address, phone number, a valid email address, and any other information indicated as required. Kimoby may reject Your application for an Account, or cancel an existing Account, for any reason, in our sole discretion.
You acknowledge that Kimoby will use the email address you provide as the primary method for communication.
3. Our responsibilities
3.1. Purchased Services
We will (a) make the Services and Content available within a reasonable period of time (maximum 10 business days) to You pursuant to this Agreement and the applicable Order Forms, (b) provide applicable Kimoby standard support for the Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime of which We will give advance electronic notice, and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay.
3.2. Protection of Your Data
We will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Your Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except to provide the Purchased Services and prevent or address service or technical problems.
3.3. Our Personnel
We will be responsible for the performance of Our personnel including Our employees and contractors and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
4. Use of services and content
Unless otherwise provided in the applicable Order Form, Services and access to Content are purchased as Accounts.
4.2. User Limits
Depending on the chosen Pricing Plan, Service or Content may not be accessed by more than a certain number of Users. To know how many Users are authorized per plan, refer to the Pricing Plan Chart. Service or Content may not be accessed by more than that number of Users. A User’s password may not be shared with any other individual in the company. A User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content.
4.3. Usage Limits
Services and Content may be subject to usage limits.The number of messages Users can send or receive is unlimited. Automation and Targeted Campaigns can be limited depending of the Pricing Plan. For limitations, refer to the Pricing Plans Chart. Kimoby may, in its sole discretion, with or without notice, limit Your access to a metered plan if Your usage exceeds the average usage of all customers.
4.4. Your Responsibilities
You will (a) be responsible for Users’ compliance with this Agreement (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use. If any communications made with the Service do not meet the Telephone Consumer Protection Act (TCPA) or the Canadian Anti-Spam Legislation (CASL, C-28) or requirements, the supplier will never be held responsible.
4.5. Usage Restrictions
You will not make any Service or Content available to anyone other than You or Users, unless expressly stated otherwise in an Order Form or the Documentation. You shall not sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content. We do not permit (a) direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement (b) copy a Service or any part, feature, function or user interface thereof, (c) copy Content except as permitted herein or in an Order Form or the Documentation, (d) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (e) access any Service or Content in order to build a competitive product or service, or (f) reverse engineer any Service. Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.6. Data Breach
In an event of a data breach of Our Services We will notify Your Services system administrator within 24 hours after the acknowledgment of the breach by Us.
5. Fees and payment for purchased services
You will pay all fees specified in Your Order Forms. Fees are based on Services and Content subscriptions purchased and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable, and quantities purchased cannot be decreased during the relevant subscription term except as otherwise specified herein or in an Order Form.
5.2. Invoicing and Payment
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law.
5.3. Suspension of Service
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue, We may suspend Our services to You until such amounts are paid in full. We may not exercise Our rights of Suspension of Service if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature. You are responsible for paying all Taxes associated with Your purchases. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.5. Future Functionalities
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
6. Proprietary rights and licenses
6.1. Reservation of Rights
Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2 Access to and Use of content
You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
6.3 License to Host Your Data and Applications
You grant Us and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-Kimoby Applications and program code created by or for You using a Service or for use by You with the Services, as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-Kimoby Application or such program code.
6.4 License to Use Feedback
You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our Services.
7.1. Definition of Confidential Information
"Confidential Information” means all 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. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), 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 does 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.
8. Representations and disclaimers
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9.1 Indemnification by You
You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in violation of the Agreement, the Documentation, Order Form or applicable law (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10. Limitation of liability
10.1 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. Term and termination
11.1 Term of Agreement.
This Agreement starts on the date You first accept it and continues until all Your Accounts have expired or have been terminated.
11.2 Term of Subscriptions and Purchased Account
The term of each Account shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal (termination) at least 30 days before the end of the relevant subscription term. The account pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 30 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
11.3 Your Data Portability and Deletion
Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided. After such 30-day period, We will have no obligation to maintain or provide any of Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited. For Kimoby Pay Accounts, some data will not be destroyed for reasons mainly related to currency exchange.
12. Testimonial granting of permission
12.1 Granting of permission
You hereby irrevocably authorize Kimoby to copy, exhibit, publish or distribute the Testimonial for purposes of publicizing Kimoby's programs or for any other lawful purpose. These statements may be used in printed publications, multimedia presentations, on websites or in any other distribution media. You agree that You will make no monetary or other claims against Kimoby for the use of the statement. In addition, You waive any right to inspect or approve the finished product, including written copy, wherein Your likeness or Your Testimonial appears. You hereby hold harmless and release Kimoby from all claims, demands, and causes of action which You, Your heirs, representatives, executors, administrators or any other persons acting on Your behalf or on behalf of Your estate have or may have by reason of this authorization.
12.2. Description of Properties. You authorize Kimoby to use the following Testimonial material(s):
- Likeness and testimonial (this includes name, biographical information, likeness, portrait, image, picture, voice, quotes, all or parts of interviews and information obtained from interviews);
- Trademarks (this includes company names and logos);
- Pictures of Kimoby users and of the company's professional storefront.
12.3 Specification of Kimoby Promotional Materials
Kimoby seeks permission to use the Properties in the following materials and activities that promote Kimoby’s products or services (Kimoby Promotional Materials):
- Presentations Brochures
- Press Releases
- Case studies (e.g., customer success stories)
- Web content
- Customer references
- White papers
- Event materials
- Email campaigns
On behalf of Your company or organization and, if the properties include Your likeness or testimonial, yourself, You grant Kimoby permission to use the properties as part of the Kimoby Promotional Materials. This includes the worldwide right to copy, translate, broadcast, transmit, distribute, exhibit, perform, publish and display the Properties as incorporated into the Kimoby Promotional Materials. Kimoby is granted no other rights to the Properties and acknowledges that it shall not gain any proprietary interest in the Properties. Kimoby is under no obligation to make use of or to provide compensation for any of the rights or permissions granted. Kimoby shall be the exclusive owner of all right, title, and interest, including copyright, in the Kimoby Promotional Materials. This Permission may be terminated at any time with thirty (30) days written notice to Kimoby. Upon termination, Kimoby shall refrain from further use of the Properties; provided, however, Kimoby may continue to use the Properties in Kimoby Promotional Materials where such Kimoby Promotional Materials have been placed in advertising media (including, but not limited to, magazines, newspapers, direct mail, email campaigns, web landing pages, website, radio, billboards, and television) prior to notice of termination and where such placements cannot be discontinued or altered without penalty to Kimoby.
13.1 Third-Party Integration
If You use a Third-Party Integration with the Service please refer to Your corresponding Annex provided to You with the Order Form.
13.2 Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices related to this Agreement will be by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
13.3 Agreement to Governing Law
This Agreement shall be governed by, and construed in accordance with, the laws of the Province of Quebec and controlling Canadian federal law, without regard to its choice of law principles.
13.4 Entire Agreement and Order of Precedence
This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all accounts for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.6 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.