Terms of Service
Updated November 1, 2024
KICKER
Terms and Conditions
IMPORTANT READ CAREFULLY: CUSTOMER'S USE OF AND ACCESS TO THE KICKER PLATFORM (AND ANY ASSOCIATED SOFTWARE AND WEBSITES) AND PRODUCTS AND SERVICES DESCRIBED ON CUSTOMER'S ORDER FORM(S) (COLLECTIVELY, THE “SERVICES”) PROVIDED BY KICKER SOFTWARE CORP. AND ITS AFFILIATES (“KICKER”) IS CONDITIONED UPON CUSTOMER'S COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND CONDITIONS, INCLUDING USE IN ACCORDANCE WITH THE CURRENT VERSION OF ANY SUPPORTING TECHNICAL DOCUMENTATION PROVIDED TO CUSTOMER BY KICKER OR AVAILABLE ON KICKER'S WEBSITES. BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES, CUSTOMER EXPRESSLY AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL ORDER FORMS AND POLICIES INCORPORATED HEREIN BY REFERENCE (THE “AGREEMENT”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.
Terms and Conditions
IMPORTANT READ CAREFULLY: CUSTOMER'S USE OF AND ACCESS TO THE KICKER PLATFORM (AND ANY ASSOCIATED SOFTWARE AND WEBSITES) AND PRODUCTS AND SERVICES DESCRIBED ON CUSTOMER'S ORDER FORM(S) (COLLECTIVELY, THE “SERVICES”) PROVIDED BY KICKER SOFTWARE CORP. AND ITS AFFILIATES (“KICKER”) IS CONDITIONED UPON CUSTOMER'S COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND CONDITIONS, INCLUDING USE IN ACCORDANCE WITH THE CURRENT VERSION OF ANY SUPPORTING TECHNICAL DOCUMENTATION PROVIDED TO CUSTOMER BY KICKER OR AVAILABLE ON KICKER'S WEBSITES. BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES, CUSTOMER EXPRESSLY AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL ORDER FORMS AND POLICIES INCORPORATED HEREIN BY REFERENCE (THE “AGREEMENT”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.
- Kicker Services 1.1 Provision and Access. Kicker will make the Services available to Customer pursuant to this Agreement and the applicable Order Form and then-current version of any supporting technical documentation provided to Customer by Kicker or available on Kicker's website (“Documentation”). The Services are provided on a subscription basis for the applicable subscription term. Kicker hereby grants to Customer a non-exclusive, non-transferable, worldwide right during the subscription term to access and use the Services solely for Customer's internal business purposes and pursuant to the Documentation, including any restrictions designated on an applicable Order Form. Customer may provide users with user IDs and passwords to access and use the Services (“Permitted Users”). A Customer must set up an account in order to access the Service, including to receive Output Data. A Customer (whether an entity or individual) must only provide account information that is the Customer's own, and that is accurate. Customer must also keep its contact information up to date, so that Kicker may contact you if needed, such as to deliver any important notices. “Output Data” means the information and other content or materials made available to you through the Kicker Platform. Output Data excludes any Customer Data.
- PROPRIETARY RIGHTS AND LICENSES
2.1 Reservation of Rights. A. Subject to the limited rights expressly granted hereunder, Kicker and its Affiliates and licensors reserve all of their right, title and interest in and to the Services and Service Metadata, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. “Service Metadata” means information collected or inferred by Kicker (including without limitation information about deliverability and system operations) in the course of delivering or otherwise providing the Service. B. Ownership. As between Customer and Kicker, all rights, title and interest in and to the Service and the Output Data (including, for avoidance of doubt, all Output Data generated or verified in connection with the input Customer provides regarding the parameters of the data it wishes provided to it), including without limitation the patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, are owned by Kicker, including, without limitation any design, compilation or product features inherent in the Service, such as the way that data is organized, curated, presented and delivered, and any know-how or other intellectual property inherent in the way Kicker creates, provides, displays or makes available the Service. These terms of service do not grant Customer or any Permitted User any ownership right, title or interest in any of the above. Neither Customer nor any Permitted User may use the Service, including any Output Data, to create any derivative work, service or product, on its own or on behalf of any other organization, and cannot resell or re-license the Output Data in any manner or form. C. License to Customer. Subject to Customer compliance with these terms of service and any Order Forms, Customer is granted a non-exclusive, revocable, non-assignable and non-sublicensable license, throughout the term of Customer's subscription to: (i) use the Service solely for its personal and/or internal business purposes; and (ii) store, print or make a copy of Output Data solely for Customer's internal business purposes (generating sales from leads provided). D. License restrictions. Customer represents and warrants that it will comply with the following restrictions. Additional rules or policies may be displayed or put in place through the Service, including any portal through which Customer submits or receives data; those rules or policies are incorporated by reference into these terms of service and Customer agrees to adhere to them.i. Service restrictions: Customers shall not:
- resell, distribute or otherwise disclose or make available the Service, including any functionally similar or equivalent version of the Output Data.
- access the Service, including any functionally similar or equivalent version of the Output Data, on behalf of any third-party entity or organization.
- transmit information to or through the Service that is fake or fictitious, impersonate any person or entity, or falsely state or otherwise misrepresent Customer's or Permitted User's affiliation with a person or entity in connection with Customer's or Permitted User's use of the Service.
- develop any service, product, toolset, dataset or derivative work from the Service, whether in aggregated or non-aggregated form, and whether in identified or de-identified form.
- reverse engineer, decompile or disassemble the Service (in whole or in part).
- access the Service or extract data from the Service in a way that exceeds Customer's authority from us, including but not limited to any rate-limit policies or practices then in place by Kicker, or violates these terms of service or other policies or restrictions we have implemented (whether such implementation is verbal or technical in nature).
- obtain Output Data other than solely through the APIs and interfaces provided by Kicker. Customer and Permitted Users shall not use any other manual or automated means, (including “data scraping,” crawlers or bots) in order to access or obtain the Service.
- access any Kicker APIs or Output Data via any Third-Party Product, or use or incorporate any Kicker API credentials into any Third-Party Product, or share any Kicker API credentials with any third parties, unless such access, use or integration has been authorized or approved by Kicker. “Third-Party Products” means products, services, websites, applications or other technology, and any related content, that Customer chooses to integrate with or use in connection with the Service. Third-Party Products are not owned or operated by Kicker.
- leverage, consult with, use, review (in trial, beta, free, or paid form) or rely upon the Service to develop or create (or permit a third party to develop or create) a product or feature that is competitive with the Service (or any portion thereof).
- not comply with any applicable Kicker API terms at all times when accessing or using any Apollo API.
ii. Restrictions on Output Data use: Neither Customer nor any Permitted User may use the Service (including without limitation, use of the Service to send email, mail, SMS, push notifications, fax, phone or other communications):
- in a manner that violates any applicable laws (including, without limitation any marketing or data privacy and security laws) or industry best practices or that would cause Kicker to violate applicable law, including without limitation, in a manner that would violate the U.S. CAN-SPAM Act of 2003, the Canadian Anti-Spam Legislation (CASL), the U.S. TCPA, the Telemarketing Sales Rules or any similar such laws.
- to advertise or promote any illegal service or product (or send any other communications) that are illegal in the place offered or consumed.
- to advertise or promote tobacco products, firearms, ammunition or other weapons, counterfeit or pirated goods or services, adult content or services (such as pornography or escort services), unlicensed gambling, investment schemes (including promotion of “pink slip” stocks), astrology or psychic services, lotteries, credit repair services, payday loan services, or any type of hate speech (targeting any societal group).
- to violate any securities or commodities regulations (such as to support a “pump and dump” scheme).
- to defraud, deceive, mislead, discriminate against, harass, libel or defame any person, group or entity.
- to violate or promote any violation of any person's or entity's intellectual property rights.
- to threaten, promote or commit violence or fraud, or to violate any person's or entity's rights.
iii. Restrictions on use of Email Services: The following are provided as examples of practices which are not permitted from the Service. Such practices will be considered a violation of the license restrictions hereunder. These practices are subject to change.
- Sending of emails from a group distribution email such as hello@ or marketing@ etc.
- Failing to include appropriate opt out mechanisms in commercial emails or failing to comply with applicable laws or best practices related to opt-outs or user choice and control principles.
- Using a fictional identity, pseudonym or alias to send emails.
- Sending emails that generate an unacceptable (as determined in Kicker's reasonable discretion) level of bounces, spam or complaints
- Transmitting material that contains or links to virus, trojan horse, worms or any malicious or harmful software program.
- Using our Service in conjunction with any unsolicited or harassing messages (commercial or otherwise) including but not limited to unsolicited emails, text messages or phone calls.
2.2 Customer Data; License by Customer to Kicker. “Customer Data” means electronic data and information (including data sets, compilations, or aggregations of the foregoing) submitted by or for Customer to the Services or collected and processed by or for Customer using the Services. Customer grants Kicker a non-exclusive, worldwide, limited term, royalty-free right to host, use, copy, transmit and display Customer Data as appropriate for Kicker to provide and ensure proper operation of the Services in accordance with this Agreement, including to provide insights, recommendations and value analysis to optimize Customer's use of the Services, and to improve the Services for customers. Subject to the limited licenses granted herein, Kicker acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data.
2.3 Feedback. Customer grants to Kicker and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Kicker's or its Affiliates' services. - SUBSCRIPTIONS; TERM; FEES AND PAYMENT
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) the Services are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Kicker regarding future functionality or features.
3.2 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
3.3 Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year periods unless either party gives the other written notice (email acceptable) at least 60 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Kicker's applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length 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.
3.4 Fees and Payment. All fees are as set forth on the Order Form and shall be paid by Customer within 30 days of the effective date of the Order Form, unless otherwise specified on such Order Form. Payment obligations are noncancelable and fees are non-refundable. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, Kicker will invoice Customer for all applicable taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. Customer will make all payments free and clear of, and without reduction for, any withholding or other taxes; any such taxes imposed on payments by Customer hereunder will be Customer's sole responsibility. Any late payments shall be subject to a service charge equal to 1.0% per month of the amount due or the maximum amount allowed by law, whichever is less. If Customer believes that Kicker has billed Customer incorrectly, Customer must contact Kicker no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Customer is responsible for providing complete and accurate billing and contact information to Kicker and notifying Kicker of any changes to such information.
3.5 Suspension of Service and Acceleration. If any charge owing by Customer is 30 days or more overdue (or 10 or more days overdue in the case of amounts Customer has authorized Kicker to charge to Customer's credit card), Kicker may, without limiting its other rights and remedies, accelerate Customer's unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Kicker will give Customer at least 10 days' prior notice that its account is overdue, before suspending services to Customer. - CONFIDENTIAL INFORMATION
4.1 Confidentiality. Each party hereto acknowledges that the Confidential Information of the disclosing party constitutes valuable confidential and proprietary information. Each party will (i) hold the Confidential Information of the other party in confidence, (ii) not disclose to any other person or use such Confidential Information or any part thereof, except in connection with the limited purpose of performing its obligations pursuant to the terms of this Agreement and except if compelled to do so under applicable law and has delivered a written notice to that effect to the disclosing party and taken all reasonable steps to avoid the disclosure of such Confidential Information, and (iii) use at least the same degree of care with respect to the other party's Confidential Information as it uses to avoid the unauthorized use, disclosure or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care. Each party will disclose the other party's Confidential Information, to the extent such disclosure is permitted under the terms of this Agreement, to its employees and agents, only on a “need to know” basis; provided in each case that such employees and agents are bound by confidentiality obligations protective of the other party, substantially similar to those in this Agreement. “Confidential Information” means any proprietary information, trade secret and other information, which is disclosed by a party to the other party, whether tangible or intangible, including, but not limited to, the terms of this Agreement and information relating to the Services, technical and financial information and any improvements, enhancements, product specifications and plans, technical data, know-how, show-how, techniques, algorithms, routines, compositions, processes, formulas, methods, designs, design rules, drawings, flow charts, samples, inventions (whether reduced to practice or not), discoveries, concepts, ideas, past, current and planned research, development or experimental work, hardware, software (object code and source code), databases, systems, structures, architectures, current and planned distribution methods and processes, customer lists, current and anticipated customer requirements, price lists and market studies, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information does not include information which (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party's lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence. - REPRESENTATIONS; WARRANTIES; EXCLUSIVE REMEDIES AND DISCLAIMERS
5.1 Representations. Each of Customer and Kicker represent to the other that: (a) it has the full corporate right, power and authority to enter into, and perform its obligations under, this Agreement; (b) the execution of this Agreement, and the performance of its obligations herein, does not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes its legal, valid and binding obligation.
5.2 Warranties. Kicker warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable security measures for protection of the security, confidentiality and integrity of Customer Data, in all material respects, (b) Kicker will not materially decrease the overall security measures relating to the Services, (c) the Services will perform in accordance with the applicable Documentation, in all material respects, and (d) Kicker will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer's exclusive remedies are those described in termination and refund of payment provisions in Section 9.2 below.
5.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KICKER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, KICKER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICES MEETING CUSTOMER'S REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER CUSTOMER'S USE OF THE SERVICES OR CUSTOMER DATA WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER CUSTOMER'S USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION. - INDEMNIFICATION
6.1 Kicker Indemnification. Kicker shall (a) defend Customer and its shareholders, directors, officers, employees, successors and assigns (collectively, the “Customer Indemnitees”) from and against any claim by a third party alleging that the technology underlying the Services, when used as authorized under this Agreement, directly infringes such third party's copyright, U.S. or Canadian patent, or trademark and (b) in relation to such claim, indemnify and hold harmless the Customer Indemnitees from any damages and costs finally awarded or agreed to in settlement by Kicker (including reasonable attorneys' fees). If Customer's use of the Services is, or in Kicker's opinion is likely to be, enjoined due to the type of infringement specified above, if required by settlement, or if Kicker determines such actions are reasonably necessary to avoid material liability, Kicker may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Services; or if (i) and (ii) are not commercially reasonable, (iii) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the subscription term which was paid by Customer but not rendered by Kicker. The foregoing indemnification obligation of Kicker shall not apply: (1) if the Services are modified by any party other than Kicker, but solely to the extent the alleged infringement is caused by such modification; (2) the Services are combined with other services or processes not authorized by Kicker, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services; (4) to any action arising as a result of Customer Data or any third-party components contained within or operating with the Services; or (5) if Customer settles or makes any admissions with respect to a claim without Kicker's prior written consent. This Section 6.1 sets forth Kicker's sole liability and Customer's sole and exclusive remedy with respect to any claim of intellectual property infringement.
6.2 Customer Indemnification. Customer shall (a) defend Kicker and its shareholders, directors, officers, employees, successors and assigns (collectively, the “Kicker Indemnitees”) from and against any claim by a third party alleging that the Customer Data, or Customer's use of the Services in breach of this Agreement infringes or misappropriates such third party's intellectual property rights or violates applicable laws, and (b) in relation to such claim, indemnify and hold harmless the Kicker Indemnitees from any damages and costs finally awarded or agreed to in settlement by Customer (including reasonable attorneys' fees).
6.3 Procedures. The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification: (i) prompt written notice of the claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (except that the indemnifying party may not settle any claim unless it unconditionally releases indemnified party of all liability) of such claim; and (iii) all reasonable assistance of the indemnified party, at indemnifying party's expense. - LIMITATION OF REMEDIES AND DAMAGES
7.1 Limitation of Liability. EXCEPT FOR LIABILITIES ARISING FROM: (i) A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION), AND (ii) A PARTY'S BREACH OF THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY, EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY KICKER FROM CUSTOMER FOR THE SERVICES UNDER THE APPLICABLE ORDER FORM IN THE TWELVE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S OR ITS AFFILIATES' PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
7.2 Exclusion of Consequential and Related Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR LIABILITIES ARISING FROM A PARTY'S BREACH OF THE INTELLECTUAL PROPERTY RIGHTS OF THE OTHER PARTY, UNDER NO CIRCUMSTANCES WILL A PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. THE ABOVE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES. - DATA SECURITY
8.1 Protection of Customer Data. The terms of the Kicker Data Processing Addendum (“DPA”) are hereby incorporated by reference and apply to the processing on Kicker information systems of personal information which is part of Customer Data. Customer and Permitted Users of the Services may view the terms of Kicker Privacy Policy at getkicker.ai/privacy.
8.2 Data Maintenance and Backup Procedures. In the event of any loss or corruption of Customer Data, Kicker shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Kicker. Kicker shall not be responsible for any loss or corruption of Customer Data caused by Customer or any third party. - TERMINATION
9.1 Termination. Either party may terminate this Agreement if the other party materially breaches its obligations hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within 30 days after receipt of written notice from the non-defaulting party.
9.2 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 9.1 above, Kicker will refund Customer any prepaid fees covering the remainder of the erstwhile term of all Order Forms after the effective date of termination. If this Agreement is terminated by Kicker in accordance with Section 9.1 above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Kicker for the period prior to the effective date of termination.
9.3 Surviving Provisions. The sections titled “Evaluation Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Remedies and Damages,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Kicker retains possession of Customer Data.
9.4 Effect of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, all rights granted to Customer under this Agreement will immediately cease to exist and Customer shall immediately stop using the Services. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Kicker will make Customer Data, including recorded calls, available to Customer for export or download as provided in the Documentation. After such 30-day period, Kicker will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, except to the extent legally prohibited. - FEDERAL GOVERNMENT END USE PROVISIONS
Kicker provides the Services for ultimate US 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 the Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Kicker 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. - BETA SERVICES
“Beta Services” means Kicker services, feature or functionality that may be made available to Customer to try at its option at no additional charge or which is clearly designated as pre-release, beta, limited release, developer preview, non-production, or by a similar description. From time to time, Kicker may make Beta Services available to Customer at a nominal fee or no charge. Customer may choose to try such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to supplemental terms. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Kicker's reservation of rights and Customer's obligations concerning the Services, and use of any Kicker services shall apply equally to Customer's use of Beta Services. Unless otherwise stated or communicated to Customer, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available. Kicker may discontinue any Beta Services at any time in Kicker's sole discretion and may never make them generally available. Kicker will have no liability for any harm or damage arising out of or in connection with Beta Services. - INJUNCTIVE RELIEF
Customer acknowledges that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to Kicker, its affiliates, suppliers and any other party authorized by Kicker to resell, distribute, or promote the Services (“Resellers”), and, under such circumstances Kicker, 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. - GENERAL PROVISIONS
Any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within two years after such claim or cause of action arose, or be forever barred.
13.1 Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. 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, Kicker will refund Customer any prepaid fees covering the remainder of the term of all subscriptions 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.
13.2 Severability If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.3 Governing Law; Jurisdiction and Venue. Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of Ontario, and of Canada applicable therein. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the competent federal and provincial courts in Toronto, Ontario. The United Nations Convention on Contracts for the International Sale of Goods and the Sale of Goods Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement. EACH PARTY WAIVES ANY OBJECTION (ON THE GROUNDS OF LACK OF JURISDICTION, FORUM NON CONVENIENS OR OTHERWISE) TO THE EXERCISE OF SUCH JURISDICTION OVER IT BY ANY SUCH COURTS.
13.4 Attorneys' Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys' fees and costs in connection with such action.
13.5 Marketing. Customer grants Kicker the right to use Customer's name and logo as a reference for marketing or promotional purposes on Kicker's website and in other public or private communications or disclosures with its existing or potential customers and investors, subject to Customer's standard trademark usage guidelines as provided to Kicker from time to time. Customer may send an email Kicker at service@getkicker.ai if it does not wish to be used for marketing or promotional purposes.
13.6 Notice. All notices to Kicker shall be valid only if sent via pre-paid first class certified mail or overnight courier to Kicker attn: Chief Legal Officer, 22 Dingwall Ave, Toronto, ON M4K 1H1 , or such other address for notification authorized by Kicker. Notices relating to payments must be sent to service@getkicker.ai. Kicker may give notice applicable to the Kicker “software as a service” customer base by means of a general notice through the Kicker portal for the Kicker Services, and notices specific to Customer by electronic mail to Customer e-mail address on record in Kicker account information or by written communication sent by first class mail or pre-paid post to the most recent Customer address provided by Customer to Kicker. Customer's current address shall be the address provided on the Order Form.
13.7 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer, including any electronic invoicing portals and vendor registration processes, will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
13.8 Entire Agreement. This Agreement (including mutually agreed exhibits or attachments) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
13.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
13.10 Third Party Beneficiaries. No third party is intended to be a beneficiary of this Agreement entitled to enforce its terms directly.
13.11 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.
13.12 Government End-Users. The Services are based upon commercial computer software. If the user or subscriber of the Services is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
13.13 Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of Canada, the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any Canadian or U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the Canadian or U.S. government as a “terrorist supporting” country and (ii) Customer shall not (and shall not permit any of its Permitted Users or others to) access or use the Services in violation of any Canadian or U.S. export embargo, prohibition or restriction.
1.2 Affiliate Access. and Use. “Affiliate” means any entity that 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.
1.2.1 Access Through Customer. Customer may, at its option, provide access and use rights to the Services to one or more Customer Affiliates, subject to all terms in this Agreement. If Customer provides such access and use rights, Customer will be wholly responsible for the acts and omissions of the Customer Affiliate. No Customer Affiliate shall have the right to take any legal action against Kicker under this Agreement or any Order Form hereunder who has not entered into a direct Order Form with Kicker under Section 1.2.2 (Separate Affiliate Ordering) below.
1.2.2 Separate Affiliate Ordering. Subject to the parties executing a mutually agreed upon Order Form, Customer Affiliates may purchase the Services, hosted on a separate instance, by signing an Order Form that references this Agreement directly with Kicker, which will establish a new and separate agreement between the Customer Affiliate and the Kicker entity signing such Order Form.
1.3 Customer Responsibilities. Customer will (a) be responsible for Permitted Users' compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data (including the obtaining of any consents required to disclose it to Kicker for use by Kicker in accordance to this Agreement and related agreements incorporated by reference hereto), the means by which Customer acquired Customer Data, and Customer's use of Customer Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Kicker promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement, Documentation, Order Forms and applicable laws and (e) comply with terms of service of any third-party applications with which Customer elects to use with the Services. Any use of the Services in breach of the foregoing by Customer or Permitted Users that in Kicker's judgment threatens, or may reasonably be suspected to threaten, the security, integrity or availability of the Services, may result in Kicker's immediate suspension of the Services, however Kicker will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
1.4 Use Restrictions. Customer shall not use the Services in a manner that violates any applicable laws. Further, Customer shall not, and shall not allow or assist any Permitted User or third party to: (a) use the Services for non-Customer business calls; (b) unless in accordance with the terms herein, grant third parties permission to use the Services, and will not itself directly (or indirectly) resell, transfer, pledge, lease, rent, or share Customer`s rights under this Agreement; (c) modify, remove or amend Kicker's name or logo, update, reproduce, duplicate, copy all or any part of the Services; (d) make the Services or content generated by the Services available to anyone other than Customer's employees and consultants for use for Customer's benefit as intended pursuant to this Agreement, or use the Services for the benefit of any entity other than Customer; (e) access or attempt to access any of Kicker's systems, programs or data that are not made available for public use, or attempt to bypass any of the Services' security and traffic management devices; (f) use the Services for benchmarking or for developing a product or service which is competitive with any Kicker product offering; or (g) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, object code or underlying ideas, structure, know-how, algorithms, file formats or programming or interoperability interfaces relevant to the Services or any software, documentation or data related to the Services by any means whatsoever. Customer may not access or use the Services if it is a direct competitor of Kicker.
1.5 Support. Kicker uses commercially reasonable efforts to maintain the highest service availability. However, Kicker cannot guarantee that the Services will operate in an uninterrupted or error-free manner. Kicker performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours and to avoid service interruptions and delays. Kicker will use commercially reasonable efforts to notify Customer in advance of any scheduled downtime. Kicker will provide access to its Customer Support team weekdays from 9:00am–9:00pm New York Time via an online portal.
1.6 Evaluation Services. Kicker may offer the Services to Customer on an evaluation basis (“Evaluation Services”) until the earlier of (i) the end of the applicable evaluation period, (ii) the start date of any subscription to the Services that Customer purchases pursuant to an Order Form, or (iii) any termination of the evaluation by Kicker for any reason, or for no reason at all, by sending Customer a termination notice with immediate effect. THE EVALUATION SERVICES ARE PROVIDED “AS IS” FOR LIMITED EVALUATION PURPOSES ONLY.
