The terms and conditions were last modified on April 1, 2015.
Section 1. Definition
In addition to terms defined elsewhere in this Agreement, whenever used in this Agreement with the initial letter capitalized, the following terms will have the following specified meanings:
“KangoGift Owned Materials” means the underlying templates, technology and related intellectual property rights owned by KangoGift and used to prepare the Output for Customer.
“Customer Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with Customer. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of Customer.
“Customer Data” means all electronic data or information submitted or uploaded by Customer or a User in connection with the Purchased Services.
“Documentation” means KangoGift’s user manuals or other documentation regarding the Services, accessible via http://www.KangoGift.com and other support domains which may be updated by KangoGift from time to time.“Evaluation Term” means the evaluation period, if any, specified in an Order.
“Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Output” means the analytics, results and related reports generated by Customer’s use of the Services and based upon the Customer Data.
“Purchased Services” means access or subscriptions to the Services that Customer or a Customer Affiliate purchases under an Order. “Purchased Services Term” means the subscription term for the Purchased Services specified in an Order.
“Services” means KangoGift’s online, web-based applications, software and platform provided via the website http://www.KangoGift.com, and/or other designated websites as described in the Documentation, that are ordered by Customer for either evaluation purposes or as Purchased Services under an Order.
“Users” means Customer’s or Customer Affiliate’s authorized users identified by Customer for whom Customer has purchased subscriptions to the Services. Users may only be Customer’s employees or contractors authorized by Customer to access the Services.
Section 2. License, Users and Orders
2.1 Evaluation Term License. During the Evaluation Term, subject to the terms and conditions of this Agreement, KangoGift hereby grants to Customer and Customer Affiliates a nonexclusive, nontransferable (except pursuant to Section 10.4), nonsublicensable, revocable and limited royalty-free license to access and use the Services solely for Customer’s internal evaluation purposes. Any Customer Data that Customer, a Customer Affiliate or any Users upload or enter into the Services during the Evaluation Term will be deleted within thirty (30) days of the end of the Evaluation Period unless (i) retrieved by Customer prior to the end of the Evaluation Term or (ii) Customer elects to purchase Purchased Services.
2.2 Purchased Services Term License. During the Purchased Services Term, subject to the terms and conditions of this Agreement, the applicable Order and Customer’s payment of undisputed Fees (defined in Section 4.1), KangoGift hereby grants to Customer and Customer Affiliates a nonexclusive, nontransferable (except pursuant to Section 10.4), nonsublicensable, revocable and limited royalty-free license to (a)access and use the Services solely for Customer’s internal business purposes, and (b) use and reproduce the Documentation for internal purposes only.
2.3 Customer License. Customer hereby grants KangoGift a nonexclusive, nontransferable (except pursuant to Section 10.4), nonsublicensable, irrevocable and limited royalty-free license to use, reproduce, copy and create derivative works of the Output, including any Customer Data therein, as necessary to provide the Services to Customer. Further, KangoGift may use the Output and any Customer Data therein for internal business purposes, including, without limitation, to improve the Services or perform other research and development, provided any Output and/or Customer Data is anonymized or otherwise used in an aggregate form.
2.4 Users. Unless otherwise specified in the applicable Order, (a) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users in an Order; and (b) additional User subscriptions may be added pursuant to the terms of an Order. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
2.5 Restrictions. Customer will not: (a) make the Services available to any third party other than designated Users; (b) sell, resell, rent, lease, modify, translate or create derivative works of the Services or KangoGift Owned Materials; (c) decompile, reverse engineer or reverse assemble any portion of the Services or KangoGift Owned Materials, or attempt to discover any source code or underlying ideas or algorithms of the Services; (d) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services or KangoGift Owned Materials; (e) knowingly use the Services to store or transmit material in violation of third party privacy rights; (f) knowingly use the Services to store or transmit Malicious Code; (g) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; (h) attempt to gain unauthorized access to the Services or their related systems or networks; or (i) remove or alter any trademark, logo, copyright or other proprietary notices associated with the KangoGift Owned Materials, Output or Documentation. The Documentation may include additional restrictions or limitations to the use of the Services, including, without limitation, limitations on storage space in the Services, and Customer agrees to comply with any such restrictions or limitations.
2.6 Orders. Customer may issue Orders for Services for KangoGift’s acceptance. KangoGift may, in its discretion, accept or deny any Order, and will indicate its acceptance by enabling access to the Services in accordance with the terms of the applicable Order. Orders may be modified by mutual written agreement of the parties.
Section 3. Additional Obligations
3.1 By KangoGift. During the Evaluation Term and the Purchased Services Term, KangoGift will: (a) provide to Customer basic support (“Support”) for the Purchased Services at no additional charge via telephone and e-mail between 9:00 AM and 5:00 PM EST, Monday through Friday; (b) use commercially reasonable efforts to ensure the Purchased Services are available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which KangoGift will give at least eight (8) hours’ notice via the Purchased Services) which will be limited to non-business hours, or (ii) any unavailability caused by circumstances beyond KangoGift’s reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving KangoGift’s employees), and (c) provide the Purchased Services only in accordance with applicable laws, regulations, rules, orders and other requirements of any applicable governmental authority (“Laws”). Support entitles Customer to the correction of errors in the Services when such correction is necessary in order for the Services to perform all material functions set out in the Documentation; provided that KangoGift will have no obligation for providing Support for error corrections that are a result of Customer’s, Customer Affiliate’s or its or their Users’ gross negligence, willful misconduct, or use of the Services in a manner not authorized in this Agreement. Support also entitles Customer to enhancements, and updates to the Services (collectively “Updates”) as such Updates are released and made generally available to all KangoGift’s subscribers at no additional cost.
3.2 By Customer. Customer will: (a) be responsible for all Users’ compliance with Section 2 (License, Users and Orders), Section 5 (Proprietary Rights), Section 6 (Confidentiality) and other applicable sections of this Agreement; (b) be solely responsible for the accuracy, quality, integrity and legality of the unmodified Customer Data and of the means by which Customer acquired the Customer Data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify KangoGift promptly of any such unauthorized access or use; (d) be responsible for any third party products or services used or exchanged by Customer in connection with the Services or any Customer Data; and (e) use the Services and Output only in accordance with the Documentation and applicable Laws.
Section 4. Fees and Payment
4.1 Fees. Customer will not be charged any fees for the Services during the Evaluation Term. During the Purchased Services Term, Customer will be charged for purchasing credit on the KangoGift site and will be charged the fees for Users specified in an applicable Order (together the “Fees”). Except as otherwise specified herein or in an Order, (a) Fees are quoted and payable in United States dollars, (b) Fees are based on Purchased Services purchased and not actual usage, and (c) payment obligations are non-cancelable and Fees paid are non-refundable, except in the case of KangoGift’s uncured material breach, in which case KangoGift will refund to Customer pre-paid amounts for Services not rendered as of the effective date of such termination and any credit purchased by Customer that has not be used as of the effective date of such termination.
4.2 Payments. Customer will pay Fees by means specified by KangoGift and agreed upon by Customer in an applicable Order. For payment of Fees by any method, KangoGift will invoice Customer in advance of the provision of applicable Services and otherwise in accordance with the relevant Order. All payments for which invoices are delivered are due within thirty (30) days of the date of the invoice. If Customer does not pay within thirty (30) days of such an invoice, KangoGift may (i) immediately suspend Customer’s Services until payment is made; and/or (ii) immediately terminate the applicable Order for which Fees were due and/or terminate this Agreement.
4.3 Taxes. KangoGift will identify on each invoice all applicable taxes payable by Customer in connection with the use of the Services. Without limiting the foregoing, in the event KangoGift determines that taxes for Services paid in advance by Customer are due for Customer’s use of such Services, KangoGift will invoice Customer for such taxes, and such taxes will be payable in accordance with Section 4.3.
Section 5. Proprietary Rights
5.1 Ownership. As between the parties and subject to the license grants under this Agreement, (a) KangoGift owns all right, title and interest in and to the Services and KangoGift Owned Materials, and any and all Intellectual Property Rights embodied therein; and (b) Customer owns all right, title and interest in and to all Customer Data uploaded to the Services, the Output (excluding any KangoGift Owned Materials therein or related thereto), and any and all Intellectual Property Rights embodied therein. Each party reserves all rights not expressly granted in this Agreement, and no licenses are granted by KangoGift to Customer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
Section 6. Confidentiality
6.1 Confidential Information. The Parties have executed a Mutual Nondisclosure Agreement, which is incorporated into this Agreement by reference.
6.2 Security of Customer Data. Without limiting Section 6.1, KangoGift shall maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data and Output. Further, KangoGift warrants that KangoGift (i) stores transaction information on secure computers located in a physically secure environment, (ii) employs technology that is consistent with industry standards for firewalls, intrusion detection systems, and other security technology to prevent KangoGift computers from being accessed by unauthorized persons, (iii) provides at minimum the following security measures: SSL 128-bit encryption of data containing personally identifiable information, the ability to transfer files via secure FTP, encrypted email, or HTTPS; and encrypted passwords. Except as explicitly permitted herein, KangoGift shall not (a) modify the Customer Data or Output that is in its possession or control and stored or hosted in the Service; (b) disclose the Customer Data or Output that is in its possession or control and stored or hosted in the Service except as compelled by applicable Laws or other legal proceedings in accordance with Section 6.2 or as expressly permitted in writing by Customer; or (c) access the Customer Data or Output except to provide the Services or prevent or address service or technical problems, or at Customer’s request in connection with customer-support matters.
6.3 Security of Passwords. Customer is solely responsible for the security of any Customer passwords. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, KANGOGIFT HAS NO LIABILITY OF ANY KIND (WHETHER BY CONTRACT, TORT OR OTHERWISE) FOR ANY UNAUTHORIZED ACCESS TO CUSTOMER’S OR ITS USERS’ ACCOUNT, EXCEPT DUE TO THE WILLFUL MISCONDUCT OR NEGLIGENCE OF KANGOGIFT.
Section 7. Representations and Warranties
7.1 KangoGift Warranties. KangoGift warrants that (a) it has the legal power to enter into this Agreement; (b) the Services shall perform materially in accordance with the Documentation; (c) the functionality of the Services will not be materially decreased during a Purchased Services Term, and (d) it is under no obligation or restriction that does or would conflict with its obligations under this Agreement, nor will it assume any such obligations or restrictions during the term hereof. Customer’s sole and exclusive remedy for any breach of the foregoing is to terminate the applicable Order and/or this Agreement.
7.2 Customer Warranties. Customer warrants that (a) it has the legal power to enter into this Agreement; (b) it will not knowingly transmit any Malicious Code in connection with the Services; (c) it has the right and authority and has obtained all necessary consents required to use the Customer Data in connection with the Services; and (d) it will comply with all applicable Laws during its performance of this Agreement.
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 SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Section 8. Indemnity and Limitations of Liability
8.1 By KangoGift. KangoGift will defend, indemnify and hold Customer and its employees, contractors and agents (collectively, “Customer Indemnitees”) harmless from and against any and all actual or threatened third party claims, suits, actions or proceedings, including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) (collectively, “Claims”) arising out of or relating to: (a) KangoGift’s or any of its employees’ or authorized agents’ breach of this Agreement; (b) KangoGift’s or any of its employees’ or authorized agents’ gross negligence or willful misconduct in providing the Services; (c) a claim that Customer’s, a Customer Affiliate’s or a User’s use of the Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party; or (d) any violation of applicable Law by KangoGift or any of its employees or authorized agents in connection with KangoGift’s provision of Services in accordance with this Agreement.
8.2 By Customer. Customer will defend, indemnify and hold KangoGift and its directors, officers, employees, suppliers, consultants, contractors and agents (collectively, “KangoGift Indemnitees”) harmless from and against any and all actual or threatened third party Claims arising out of or relating to: (a) Customer’s, a Customer Affiliate or its or their Users’ breach of this Agreement; (b) Customer’s, a Customer Affiliate or its or their Users’ gross negligence or willful misconduct in connection with the use of the Services; (c) a claim that the Customer Data infringes or misappropriates the Intellectual Property Rights of a third party, (d) Customer’s unlawful disclosure or use of any Output after such Output is within Customer’s possession or control, except where the claim occurs pursuant to KangoGift’s breach of its obligations pursuant to Section 6.3, or (e) any violation of any applicable Law by Customer, a Customer Affiliate or its or their Users in connection with the use of the Services.
8.3 Process. Each party seeking indemnification hereunder will (a) promptly give the indemnifying party written notice of the Claim; (b) give the indemnifying party sole control of the defense and settlement of the Claim, provided that the indemnifying party may not settle any Claim that involves the payment of monies or acknowledgment of liability or wrongdoing on the part of the indemnified party without the indemnified party’s prior written consent; and (c) provide to the indemnifying party, at the indemnifying party’s expense, all reasonable assistance necessary for the defense and settlement of the Claim.
8.4 Limitation of Liability. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) OR EITHER PARTY’S OBLIGATIONS WITH RESPECT TO INDEMNIFICATION HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF CUSTOMER DATA (OR ANY DATA RELATED THERETO) OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE KANGOGIFT OWNED MATERIALS OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, MISCONDUCT, EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) OR EITHER PARTY’S OBLIGATIONS WITH RESPECT TO INDEMNIFICATION HEREUNDER, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF THE AMOUNTS PAID BY CUSTOMER TO KANGOGIFT DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM, THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
Section 9. Term and Termination
9.1 Term of Agreement. If Customer elects to use the Services for evaluation only, the term of this Agreement will commence on the Effective Date and will expire following the end of the Evaluation Term. If Customer elects to obtain Purchased Services, the term of this Agreement will commence on the Effective Date and, unless earlier terminated, will continue for the duration of any Purchased Services Term in an applicable Order.
9.2 Termination. Either party may terminate this Agreement or any individual Order as follows: (a) for cause if the other party materially breaches this Agreement or an Order and does not remedy such breach within thirty (30) days after its receipt of written notice of such breach; (b) immediately if the other party (i) terminates its business activities or becomes insolvent, (ii) admits in writing to the inability to pay its debts as they mature, (iii) makes an assignment for the benefit of creditors, or (iv) becomes subject to direct control of a trustee, receiver or similar authority; (c) in the case of Customer, for its convenience, upon thirty (30) days prior written notice to KangoGift.
9.3 Transition of Customer Data. For a period following the expiration or termination of this Agreement but no longer than sixty (60) days following termination or expiration of this Agreement, KangoGift will continue to store, maintain or provide any Customer Data to Customer or its Users. Thereafter, unless prohibited by applicable Laws, KangoGift will, at Customer’s option, allow Customer to access and retrieve the Customer Data or delete or erase any and all Customer Data hosted, stored or maintained by KangoGift in connection with the Services.
Section 10. Miscellaneous
10.1 Notices. Any notice or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be (a) delivered by hand, deposited with an overnight courier; (b) sent by confirmed email; or (c) mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address in the signature block below or at such other address as may hereafter be furnished in accordance with this Section.
10.2 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be entirely performed within the State of Delaware, without resort to its conflict of law provisions. Customer irrevocably consents to the jurisdiction of the state and federal courts in Delaware for the resolution of any disputes or conflicts arising out of or related to this Agreement. Party agrees to accept service of process by registered mail or the equivalent directed to its last known address or by such other means permitted by any such court.
10.3 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by either party, by operation of law or otherwise, without the prior written consent of the other party, except that this Agreement may be assigned by a party to any successor to substantially all of its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise, without such consent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
10.4 Relationship of Parties. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchisee, employee, representative, owner or partner of the other party, and the relationship between the parties will solely be that of independent contractors.
10.5 Severability. If any provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner which ensures that all transactions contemplated hereby are fulfilled.
10.6 No Waiver. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. Each party 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.
10.7 Entire Agreement; Amendments. This Agreement, together with each Order, is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. No modification, addition, deletion or waiver of any rights under this Agreement will be binding on a party unless (a) made in writing; (b) clearly understood by the parties to be a modification, addition, deletion or waiver; and (c) signed by a duly authorized representative of each party.
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