Last Updated: February 17, 2023
These Terms of Service (these “Terms”) govern the relationship between Kenect, LLC (referred to herein as “Kenect”, “we” or “us”) and the Client, as identified in the Enrollment Form (as defined below) (referred to herein as “Client” or “you”). Kenect and Client are sometimes referred to herein individually as a “Party” and collectively as the “Parties.” By accessing or using the Kenect Service (defined below), any related services that reference these Terms, or entering into any agreement that references these Terms, you agree to be bound by these Terms. The Enrollment Form and these Terms collectively constitute the “Agreement.”
If you are using the Kenect Service on behalf of a company or other entity, then “Client” or “you” means that entity, and you are binding that entity to this Agreement. You represent and warrant that you have the legal power and authority to enter into this Agreement, and that, if the Client is an entity, this Agreement is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.
This Agreement includes and hereby incorporates by reference any Subscription Documentation (defined below) executed between you and Kenect, as well as any policies or exhibits linked to or referenced herein. Please note that we may modify these terms as described in Section 19.9 below.
1. OVERVIEW OF THE KENECT PLATFORM.
Kenect provides a proprietary multi-product platform that includes without limitation reviews, messaging, payment processing, lead qualification, response automation, advertising or certain Add-Ons (each as defined below), and any other services Kenect may offer from time to time (the “Kenect Service”). Client will enter into one or more agreements with Kenect (each, an “Enrollment Form”) that references these Terms and details the Kenect Services ordered from Kenect and, if applicable the usage limits or other scope of use descriptions for the specific Kenect Service package (the “Scope of Use”). Client may be provided the option to purchase certain Kenect Services as part of a package or bundle offer (each, a “Bundle”), as detailed in the applicable Enrollment Form. Kenect shall have no obligation to provide any services or perform any tasks not specifically set forth in the Enrollment Form.
2. DEFINITIONS. Any capitalized term used but not defined in these Terms shall have the meaning given in the Enrollment Form. The following capitalized terms shall have the following meanings:
2.1. “Add-On” means integrations, applications and other add-ons that are used with the Kenect Service.
2.2. “Affiliate(s)” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of such entity or ownership of 50% or more of the voting securities of such entity.
2.3. “Aggregate/Anonymous Data” means: (i) data generated by aggregating Client Data with other data so that results are non-personally identifiable with respect to Client or its Customers and (ii) anonymous learnings, logs and data regarding use or effectiveness of the Kenect Service. Aggregate/Anonymous Data includes Metadata.
2.4. “Authorized User(s)” means Client’s employees and contractors who are acting for Client’s benefit and on its behalf, and whom Client has authorized to access the Kenect Service and the information contained therein.
2.5. “Business Associate Agreement” means a written agreement between a covered entity and a business associate containing the elements specified at 45 CFR 164.504(e), currently available at https://www.kenect.com/business-associate-agreement, which may be amended from time to time.
2.6. “Client Data” means: (i) Content and any (ii) Submitted Data.
2.7. “Confidential Information” means code, inventions, know-how, product plans, technical and financial, business, operational, or other information exchanged under the Agreement or learned during the performance of the Agreement, or, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed. Confidential Information also includes all Customer Data.
2.8. “Content” means information, data, text, images, music, sounds, photographs, graphics, videos, messages, tags and/or other materials/content that Client selects for use or makes accessible through the Kenect Service (including Third Party Content).
2.9. “Customer(s)” means any person that is a client, customer, or patient of Client, or that is a potential client, customer or patient of Client, who sends data through and/or access or utilizes the Kenect Service.
2.10. “Customer Data” means data or personal information related to the identity, characteristics and activities of Customers, collected or submitted to the Kenect Service by Client or captured by the Kenect Service. To the extent Client is a Covered Entity (as defined in the Business Associate Agreement), “Customer Data” also includes Protected Health Information (as defined in the Business Associate Agreement).
2.11. “Kenect Technology” means the Kenect Service, products, any and all related or underlying documentation, software, technology, code, know-how, logos, trademarks, service marks, and templates (including in any reports or output obtained from the Kenect Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including all discoveries, innovations, improvements, ideas or inventions conceived of or developed in connection with Kenect providing the Kenect Service, or as a result of the Kenect Service, which may include and incorporate Feedback.
2.12. “Messages” include Short Message Service (SMS) and Multimedia Messaging Service (MMS) messages. Message length is technically limited, with specific capacities subject to change.
2.13. “Metadata” are data that Kenect derives from its analysis of Customer Data or Client Data submitted through the Kenect Service.
2.14. “Submitted Data” means data uploaded, inputted or otherwise submitted by Client to the Kenect Service, including any Protected Health Information (as defined in the Business Associate Agreement) or any Third Party Content.
2.15. “Subscription” means either: (i) Client’s entering into the Enrollment Form with Kenect, whereby Client agreed to receive the Kenect Service on an ongoing basis, according to the terms and conditions referenced in the Enrollment Form; or (ii) Client’s agreement to receive the Kenect Service on an ongoing basis, according to the terms and conditions referenced in any and all Subscription Documentation.
2.17. “Territory” means (i) all counties in the state of Utah, (ii) all other states of the United States of America and (iii) all other countries of the world where Kenect derives at least three percent (3%) of its gross revenues during the Restricted Period defined in Section 13.1 below.
2.18. “Third Party Content” means content, data or other materials that Client provides to the Kenect Service from Client’s third-party data providers, including through Add-Ons or Third Party Products used by Client.
2.19. “Third Party Product” means any Add-On, applications, integrations, software, code, online services, systems and other products not developed by Kenect.
Other terms are defined in other Sections of this Agreement.
3. ACCOUNT REGISTRATION.
4. USE RIGHTS.
4.1. Training and Setup. Before Kenect will activate the Kenect Service, Client must complete Kenect’s standard training call (the “Training Call”) and provide Kenect and any other third party, as necessary, all applicable documentation (“Training Call”). The Parties shall mutually determine the preferred date and time for the Training Call and identify the participating individuals. During the Training Call, in order for online reviews and website widgets to be activated, Client must link review sites and provide location information as directed by Kenect.
4.2. Use of Kenect Services. Subject to all terms and conditions of the Agreement, Kenect grants Client a worldwide, non-exclusive, non-transferable, non-sublicensable right, revocable, limited right and license during the applicable Subscription Term to access and use the Kenect Service designated on the Enrollment Form or Subscription Documentation solely for Client’s internal business purposes, but only in accordance with the Enrollment Form, these Terms, Subscription Documentation, and all applicable Scope of Use descriptions. Client acknowledges that Client may be responsible for additional fees as set forth Section 8 if it exceeds the Scope of Use.
4.3. Use by Others. Client may permit its Authorized Users to use the Kenect Service provided their use is for Client’s benefit only and remains in compliance with the Agreement. Client will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein. Client will be solely responsible for authorizing and creating user IDs, passwords and other access credentials for Authorized Users. Client is solely responsible for determining its Authorized Users and/or restricting or terminating the rights of such users during the Subscription Term, as Client deems appropriate. Client is solely responsible for ensuring that any user IDs, passwords and other access credentials (such as API tokens) for the Kenect Service are kept strictly confidential and not shared with any unauthorized person. Additionally, Client is solely responsible for complying, and ensuring its Authorized Users comply, with all laws applicable to Client. Client is solely responsible in determining which of its agents or employees should be an Authorized User, the level of access for each Authorized User, and when such access should be terminated or restricted. Client will be solely responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Client must notify Kenect immediately of any breach of security or unauthorized use of its account.
4.4. General Restrictions. Client must not (and must not allow any third party to):(i) rent, lease, copy, transfer, sublicense or provide access to the Kenect Service to a third party (except Authorized Users as specifically authorized above); (ii) incorporate the Kenect Service (or any portion thereof) into, or use it with or to provide, any site, product or service; (iii) use the Kenect Service (or any portion thereof) for time sharing purposes or for a third party’s benefit; (iv) publicly disseminate information regarding the performance of the Kenect Service (which is deemed Kenect’s Confidential Information); (v) modify or create a derivative work of the Kenect Service or any portion thereof; (vi) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Kenect, except to the extent expressly permitted by applicable law and then only upon advance notice to Kenect; (vii) break or circumvent any security measures or rate limits for Kenect Services; (viii) distribute any portion of the Kenect Service other than as specifically permitted above; or (ix) remove or obscure any proprietary or other notices contained in the Kenect Service including in any reports or output obtained from the Kenect Service.
4.5. Messages. If your use of the Kenect Service requires an API token or similar customization, you are entitled to send up to five thousand (5,000) Messages each month per Location enrolled. If you exceed the 5,000 Messages/month limit, Kenect will promptly notify you of the same and you may be charged for such usage and you agree to pay the additional Fees in the manner provided herein. Messages may contain up to 160 characters. Any Message with more than 160 characters will be counted as two messages or more
5. CLIENT DATA.
5.1. Rights in Client Data. As between the Parties, Client retains all right, title and interest (including any intellectual property rights) in and to the Client Data. Client hereby grants Kenect a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Client Data solely to the extent necessary to provide the Kenect Service and related services to Client and as otherwise provided herein.
5.2. Aggregate/Anonymous Data. Client agrees that Kenect will have the right to generate Aggregate/Anonymous Data. Notwithstanding anything to the contrary herein, the Parties agree that Aggregate/Anonymous Data is Kenect Technology, which Kenect may use for any business purpose during or after the term of the Agreement (including without limitation to develop and improve Kenect’s products and services and to create and distribute reports and other materials). Kenect will not distribute Aggregate/Anonymous Data in a manner that personally identifies Client or its Customers, or that would otherwise violate applicable laws. If the Business Association Agreement applies to Client, Kenect will use the Aggregate/Anonymous Data only in conformity with the terms thereof.
5.3. Security. Kenect agrees to maintain reasonable administrative, technical and organizational measures that are intended to secure its systems from unauthorized access, use or disclosure. These measures will include: (i) storing Client Data on servers located in a physically secured location and (ii) using firewalls, access controls and similar security technology designed to protect Client Data from unauthorized disclosure. If Client is a Covered Entity (as defined in the Business Associate Agreement), Kenect will secure and utilize Protected Health Information in accordance with the Business Associate Agreement. Kenect takes no responsibility and assumes no liability for any Client Data other than its express security obligations in this Section.
5.4. Storage. Unless otherwise specified in an Enrollment Form, Client shall not exceed 1TB of uploaded Content to the Kenect Service. Notwithstanding the foregoing, Kenect does not provide an archiving service. During the Subscription Term, Client acknowledges that Kenect may delete Content no longer in active use. Except for requirements that are included in the Business Association Agreement entered into between Kenect and Client, as applicable, Kenect expressly disclaims all other obligations with respect to storage.
5.5. Monitoring. Client understands and agrees that Kenect, and any third-party platform(s) Client uses or accesses in connection with the Kenect Service, may monitor and analyze Client Data or Customer Data (including but not limited to reviews, surveys, messages, chats, etc.) to improve the Kenect Service or third-party platform; to improve Client’s experience using the Kenect Service or third-party platform; to customize and communicate informational or product offerings and promotions to Client; to ensure compliance with the Subscription Documentation; and/or to make the Kenect Service, or third-party platform more helpful or useful to Client and other users.
5.6 Leads Metadata and Your OEMs. For Clients who operate dealerships, Client hereby authorizes and grants: (a) Kenect a license to share and distribute Client’s Leads Metadata (as defined below) with Client’s on-brand OEM that is specific to such OEM in connection with the provisions of the Kenect Service, and (b) such OEM a license to access and retain Client’s Leads Metadata, and to use and exercise all rights in it, as permitted by applicable law and the functionality of the Kenect Service.
For purposes herein, Client’s “Leads Metadata” means number of leads, average response times, lead sources and other data derived from an analysis of customer lead interactions and/or experience with and through the Kenect Service (whether via websites, applications, tools or other means). Leads Metadata may also include number of online review and review ratings. Leads Metadata shall be de-identified and shall not include customer name, phone number, address, or email address.
Client acknowledges and agrees that the Leads Metadata may be retained by Kenect and such OEM and remain accessible elsewhere, including without limitation, where such Leads Metadata was provided to or copied or stored by such OEM. Additionally, and without limiting the foregoing, Client hereby grants to Kenect and such OEM a royalty-free, non-exclusive, perpetual, irrevocable license to use the Leads Metadata for the purposes of aggregating and combining the Leads Metadata with other dealers’ information/data and presenting the combined data in a manner that does not identify Client as the source of any of the combined data or attribute any of the combined data to Client, and using the same in an aggregated and de-identified manner for any reasonable business purpose in perpetuity, and/or developing reports for such OEM, which may include directly sharing Leads Metadata with such OEM.
6. CLIENT OBLIGATIONS; REPRESENTATIONS.
6.1. Customer Authorization; Client Data. Client will, for the duration of the Subscription Term: (i) provide all required disclosures to Customers and obtain all required consents and/or authorizations from Customers, based on applicable laws, prior to utilizing the Kenect Service; and (ii) obtain all necessary rights, releases and consents to allow Client Data to be collected, used and disclosed in the manner contemplated by the Agreement and to grant Kenect the rights herein. Client acknowledges and agrees that Client is solely responsible for its compliance with applicable law and regulations and shall not rely on the Kenect Service for any such compliance. Use of the Kenect Service does not guarantee compliance with applicable law or regulation, and Kenect specifically disclaims any liability for Client’s non-compliance. Client represents and warrants that its Client Data, and Kenect’s use thereof, will not violate third party rights, including intellectual property, privacy and publicity rights. If Client receives any take down requests or infringement notices related to Client Data or its use of Third Party Products, it must promptly stop using these items with the Kenect Service and notify Kenect immediately.
6.2 Content. Client acknowledges that all Content is solely Client’s responsibility of the party from whom such Content originated. Client agrees and acknowledges that Client is solely responsible for its compliance with applicable law and regulations and shall not rely on the Kenect Service for any such compliance. Kenect will not provide or create any Content for Client to make available through the Kenect Service or any other medium. By providing any Content to Kenect, the Client warrants and represents that the Client has sole ownership of such Content and that the Content is free of any intellectual property claims by any third party. Client also warrants and represents that Kenect shall have no obligation to provide Client or third parties any compensation for such Content.
6.3. Compliance with Laws. Client warrants and represents that it is in full compliance with all applicable state, federal, and international laws, rules and regulations and that Client will not use the Kenect Service in a manner that would violate or cause Kenect to violate any obligation with respect to any such laws, rules or regulations, or amendments thereto, including but not limited to the California Consumer Privacy Act, Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act of 1991, any policy or decision made by the Canadian Radio-television and Telecommunications Commission, Canada’s Anti-Spam Legislation, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, Electronic Signatures in Global and National Commerce Act, any Joint Commission requirements or standards, COPPA, Do Not Call rules and prohibitions, any industry self-regulatory guidance issued by telecommunications carriers and the Cellular Telecommunications Industry Association (CTIA), and all applicable local, state and federal privacy and cybersecurity laws and regulations.
6.4 Representations Regarding Messages.
(a) Client further represents and warrants that (i) it, and not Kenect, is the “sender” of all Messages transmitted using the Kenect Service; (ii) Client has consent to send automated Messages to the telephone numbers in the Submitted Data for purposes that include marketing, and Client acknowledges and agrees that it is solely responsible for ensuring such consent has been obtained; (iii) Client has procured all rights and licenses and has all power and authority necessary to use and text enable those phone numbers it registers or associates with Client’s account; (iv) Client will not use the Kenect Service on a phone number that has been exchanged, rented, or purchased from a third party, or reassigned without the permission of the phone number owner; and (v) the phone number is not a mobile subscriber phone number.
(b) Client acknowledges and agrees that Kenect has no obligation to screen content for compliance with the TCPA, telemarketing, do-not-call or privacy laws, and Client acknowledges and agrees that it is solely responsible for such compliance.
6.5 Representations Regarding Reviews and Ratings. If monitoring and managing your online reviews or ratings is included in the Kenect Service you order, you represent and warrant that (i) you are authorized to provide us with any Customer, Client or Authorized User information that you provide to us in connection with such services (the “Information”), including any personally identifying information of those parties; (ii) our possession and use of the information on your behalf in connection with the Kenect Service will not violate any contract, statute, or regulation; (iii) any content that you and your authorized representative(s) submit for publication on an online review or ratings website as a provider of goods or services will be true and accurate, is the original work of your authorship, and will only concern you and the goods and services that you provide; (iv) you and your authorized representative(s) will only request reviews via the Kenect Service from bona fide Customers; and (v) you and your authorized representative(s) will only provide Information for Customers whose most recent transaction with your business occurred less than 12 months from the date you provide their information to Kenect. Additionally, if an integration or auto-connector is included in the Kenect Service you order, you grant Kenect the right to access your Information or CRM system directly or through a third-party service for the purposes of fulfilling Kenect’s obligations under the Agreement, and you warrant that you are not restricted by law or applicable agreement from granting Kenect such right. Kenect will not be held liable for any consequences of false or inaccurate content published to an online review or ratings website through the Kenect.
6.6 Additional Representations and Warranties. Client represents and warrants that Client and/or Client’s authorized representative(s) will only use the Kenect Service for interaction with actual Customers.
6.7. Additional Covenants. Client covenants to Kenect that Client: (a) will comply with any of Kenect’s policies and procedures which may be provided to Client and may be amended from time to time with advance notice of material changes from Kenect to Client; (b) will not use Kenect’s name or logo, in any written material or advertisement, without Kenect’s prior written approval.
6.8. Electronic Communication. When Client visits Kenect’s website, uses Kenect’s mobile application, sends e-mails to Kenect, or communicates electronically with Kenect, in any form, Client consents to also receive communications from Kenect electronically. Client agrees that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
6.9. Client Responsibilities. Client responsibilities related to advertising services include:
a) Granting to Kenect access and control (including logins, passwords, and administrator-level access) to social media networks, email addresses, Google Analytics, or other platforms owned or controlled by the Client as needed.
b) Securing Client’s internal approvals, including for advertising Kenect creates or places on Client’s behalf. At Client’s request, Kenect shall provide Client opportunity to pre-approve all advertising, and Client shall be able to view all advertising directly on the social media platforms. As such, Kenect’s liability for any advertisement shall be capped at the total amount of management fee charged by Kenect for running any specific advertisement.
c) If requested, Kenect shall provide proofs of content (e.g. ad or post copy or images) to Client, and permit up to two rounds of edits from Client. If edits aren’t received from Client within 48 hours of final proof being delivered, Client agrees that such inaction represents approval of said content. If Client requests edits to content already created and approved that are not correcting Kenect errors, such edits shall count as an additional piece of content. Edits will be completed the same business day if requested before 3pm Mountain Time; otherwise they will be completed on the next business day. Additional charges may apply to edit content that has already been published. Edits may include copy / call to action, targeting, dates, budget, or placement, but after the first proof is approved, may not include Facebook ad type, imagery, or inventory feed. If Client does not provide dealer incentive for agreed upon ad budget by the 10th of the month, Kenect may select an offer to run on client’s behalf.
d) Procurement of any third party products as mutually agreed (“Third Party Products”)
e) Ensuring the legality of any use by Client of Kenect’s software tools or Services as pertaining to all state, local or federal or other laws and regulations, including, but not limited to, activities such as contests, sweepstakes, giveaways or similar programs managed by Kenect, and obtaining consents for communicating with consumers via email, text message or other electronic means using Kenect software. By providing phone numbers, email addresses or other customer contact information to Kenect for the purpose of sending communications to customers via Kenect systems, Client agrees that it is the initiator and in effect the sender of any such communications. Client agrees to indemnify and hold harmless Kenect for any alleged or actual violation of any such law or applicable regulation. Tasks that are primarily the responsibility of Client’s personnel will remain Client’s responsibility, even if Kenect assists Client in performing such tasks. Client agrees that Kenect may rely on all Client decisions and Client approvals with regard to the Services conveyed to Kenect.
7. SUPPORT SERVICES.
Kenect makes available web-based support through its website (currently available at www.kenect.com). Additional services may be available to Client upon payment of applicable fees (if any), as specified in Client’s Enrollment Form or any related Subscription Documentation. Any support services are subject to these Terms and Kenect’s applicable support policies. Kenect may also provide onboarding, deployment and other services under the Agreement. The scope, pricing and other terms for these additional services will be set forth in a proposal, Subscription Documentation, or other document referencing the Enrollment Form. Kenect’s ability to deliver the Kenect Service will depend on Client’s reasonable and timely cooperation and the accuracy and completeness of any information from Client needed to deliver the Kenect Service.
8. SERVICE FEES AND PAYMENT.
8.1. Fees. Client agrees to pay to Kenect all fees for the Subscription to the Kenect Service or any Bundle (“Subscription Fees”) and any additional fees (if applicable), in accordance with an Enrollment Form or Subscription Documentation (collectively, the “Fees”). Kenect reserves the right to revise the Fees including raising the price for the Kenect Service by providing Client at least thirty (30) days’ prior written notice.
8.2. Payment of Fees. If Client has elected to pay via credit card, ACH, direct debit, etc. on the applicable Enrollment Form, Client authorizes Kenect to charge the Subscription Fees automatically, on an auto-renew basis, during the Subscription Term. Unless otherwise specified in an Enrollment Form, all Subscription Fees shall be paid in advance. Subscription Fees are non-refundable and non-creditable and payment obligations non-cancellable. If Client’s use of the Kenect Services requires the payment of additional Fees (per the terms of this Agreement), Kenect shall notify Client and the parties shall work in good faith to promptly and jointly agree to any excess fees to be paid. The foregoing provision shall not apply to any increase in the fees if Client exceeds the Scope of Use per the term of this Agreement, as determined by Kenect. Kenect shall have the right to charge interest on all overdue amounts at the rate of 1% a month, or the maximum lawful amounts, whichever is less. If Kenect sends the account for collection or initiates legal action to collect overdue amounts, Client shall be liable for all cost and expenses of such action, including reasonable attorney’s fees, court costs, and expenses. Additionally, after payment becomes overdue, Kenect shall have the right to immediately cease Client’s access to the Kenect Service.
8.3 Taxes. Kenect’s fees are exclusive of all taxes, and Client must pay any applicable sales, use, VAT, GST, excise, withholding or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Kenect. Client will make tax payments to Kenect to the extent amounts are included in Kenect’s invoices. Should Kenect be unable to process/receive the fees when due and owing, payment shall be considered overdue.
9. SUSPENSION OF SERVICE.
9.1. Suspension of Service. Kenect may suspend Client’s access to the Kenect Service if: (i) any monies are overdue to Kenect; (ii) Client has breached the Agreement and any addenda thereto; or (iii) Client has exceeded its Scope of Use limits. Kenect may also suspend Client’s access to the Kenect Service, remove Client Data or disable Third Party Products if it determines that suspension is necessary to prevent harm or liability to other Clients or third parties or to preserve the security, stability, availability or integrity of the Kenect Service. Kenect will have no liability for taking action as permitted above. For avoidance of doubt, Client will remain responsible for payment of Fees during any suspension period. Unless the Agreement has been terminated, Kenect will cooperate with Client to restore access to the Kenect Service once it verifies that Client has resolved the condition requiring suspension.
10. TERM AND TERMINATION.
10.1. Term. This Agreement is effective until the applicable Subscription Term for the Kenect Service has expired or the Subscription is terminated as expressly permitted herein. The term for any Subscription to the Kenect Service will be set forth in the Enrollment Form and will automatically renew for subsequent periods of equal duration (the “Subscription Term”), unless either Party provides written notice to the contrary at least thirty (30) day prior to the end of the then-current Subscription Term, in which case, the Subscription Term will terminate automatically without penalty at the end of such term. Unless otherwise stated in the Enrollment Form, the initial term for any Subcription to the Services is twelve (12) months and will automatically renew for periods of equal duration.
10.2. Termination by Kenect. Kenect may terminate this Agreement, including any Enrollment Form, immediately, without notice: (i) if Client fails to cure any material breach of this Agreement (including a failure to pay Fees) within fifteen (15) days after written notice detailing the breach, (ii) upon fraud or criminal conduct committed by Client, or (iii) the insolvency of Client.
10.3. Effect of Termination. Upon any expiration or termination of this Agreement of the Enrollment Form: (i) Client’s license rights shall terminate and it must immediately cease use of the Kenect Service (including any related Kenect Technology) and delete (or, at Kenect’s request, return) any and all copies of any Kenect documentation, passwords or access codes and any other Kenect Confidential Information in Client’s possession, custody or control, and (ii) Client’s right to access any Client Data in the applicable Kenect Service will cease, and unless otherwise precluded by a Business Associate Agreement, Kenect may delete any such data in its possession at any time. If Kenect terminates the Enrollment Form for cause as provided in Section 10.2, any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Client. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
11. CONFIDENTIAL INFORMATION.
11.1. Obligation of Confidentiality. Each Party (as the receiving party) must: (i) hold in confidence and not disclose the other Party’s Confidential Information Customer Data to third parties except as permitted by the Agreement; and (ii) use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under the Agreement. Each Party may share the other Party’s Confidential Information and Customer Data with its employees, agents, contractors or subcontractors having a legitimate need to know, provided that such Party remains responsible for any recipient’s compliance with the terms of this Section 11 and these recipients are bound to confidentiality obligations no less protective than this Section.
11.2. Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party prior to receipt of the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A Party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other Party to obtain confidential treatment for the information.
11.3. Remedies. The Parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
12.1. Non-Solicitation. During the Subscription Term and for a period of three (3) years thereafter (the “Restricted Period”), Client shall not, (a) without Kenect’s prior written consent, directly or indirectly, solicit or encourage any employee or contractor of Kenect to terminate employment with, or cease providing services to, Kenect, or (b) whether for its own account or for the account of any other person or entity, intentionally interfere with any person who is or during the Subscription Term was a partner, supplier, client or customer of Kenect.
12.2. Non-Competition. During the Restricted Period, Client will not, without the prior written consent of Kenect: (i) serve as a partner, employee, consultant, officer, director, manager, agent, associate, investor of, (ii) directly or indirectly, own, purchase, organize or take preparatory steps for the organization of, or (iii) build, design, finance, acquire, lease, operate, manage, invest in or work for any business in competition with or otherwise similar to Kenect’s business in the Territory.
a. Client’s fulfillment of the obligations contained in Section 12.2 above is necessary to preserve the Confidential Information, value and goodwill of Kenect. Client acknowledges the time, geographic and scope limitations of the obligations under Section 12.2 above are reasonable, especially in light of Kenect’s desire to protect trade secrets, and that Client will not be precluded from conducting its business if obligated to comply with Section 12.2 above.
b. The covenants contained in Section 12.2 above shall be construed as a series of separate covenants, one for each city, county and state of any geographic area in the Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in Section 12.2 above. If, in any judicial proceeding, a court refuses to enforce any of such separate covenants (or any part thereof), then such unenforceable covenant (or such part) shall be eliminated from the Agreement to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced. In the event the provisions of Section 12.2 above are deemed to exceed the time, geographic or scope limitations permitted by applicable law, then such provisions shall be reformed to the maximum time, geographic or scope limitations, as the case may be, then permitted by such law.
13. KENECT TECHNOLOGY.
13.1. Ownership and Updates. The Agreement is a subscription for access to and use of the Kenect Service. Client acknowledges that it is obtaining only a limited right to use the Kenect Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Client under the Agreement. Client agrees that Kenect (or its suppliers) retains all rights, title and interest (including all intellectual property rights) in and to all Kenect Technology (which is deemed Kenect’s Confidential Information) and reserves any licenses not specifically granted herein. The Kenect Service is offered as an on-line, hosted product and a mobile application available for download onto Client’s mobile device. Accordingly, Client acknowledges and agrees that it has no right to obtain a copy of the software behind any Kenect Service and that Kenect at its option may make updates, bug fixes, modifications or improvements to the Kenect Service from time-to-time. All Kenect Technology is and shall be the sole and exclusive property of Kenect. Client agrees to assign and hereby does assign any and all right, title and interest in and to all Kenect Technology. Client agrees to perform all acts deemed reasonably necessary or desirable by Kenect to carry out the purposes of this Section 13.1.
13.2. Feedback. If Client elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Kenect (collectively, “Feedback”), Client hereby grants Kenect a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in the Agreement limits Kenect’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise.
Client will indemnify, defend and hold harmless Kenect and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Kenect Parties”), to the fullest extent permitted by law, from and against any third-party claims, demands and related costs, losses, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to (i) your unauthorized use of, or misuse of, the Kenect Service; (ii) your violation of any applicable law or third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (iii) any dispute or issue between you and any third party (including your Customers); (iv) any demand, dispute, or issue (including without limitation fee disputes) between you and your payment processor; (v) any Client Data; (vi) Kenect’s use, as contemplated in this Agreement, of any information provided to Kenect by you or your Customers; (vii) breach or alleged breach of this Agreement, including Client’s representations, warranties, and obligations;(viii) any claim of a governmental entity or other party that you have violated any law, rule, or regulation; or, (ix) if applicable, breach or alleged breach of Client’s obligations contained in the Business Associate Agreement. Client also agrees to immediately defend the Kenect Parties against these claims at Kenect’s request, but Kenect may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Kenect reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Client and Client must not settle any claim without Kenect’s prior written consent. This section survives termination of these Terms.
EXCEPT AS PROVIDED EXPRESSLY HEREIN, ALL KENECT TECHNOLOGY AND RELATED SERVICES, MATERIALS AND CONTENT MADE AVAILABLE THROUGH THE KENECT TECHNOLOGY ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER KENECT NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT. KENECT MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT KENECT TECHNOLOGY WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT CLIENT DATA WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT KENECT TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, AND KENECT DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. KENECT WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT PROPERTIES, THIRD PARTY PRODUCTS, THIRD PARTY CONTENT, OR NON-KENECT SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, USE AND DISCLOSURE OF CLIENT DATA AUTHORIZED BY THE AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON KENECT TECHNOLOGY OR KENECT’S RELATED SERVICES. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE KENECT SERVICE OR THE KENECT PARTIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE KENECT SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE KENECT ENTITIES OR THE KENECT SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. KENECT DOES NOT PROVIDE ITS CLIENTS WITH LEGAL ADVICE REGARDING DATA PRIVACY OR COMPLIANCE WITH RELEVANT LAW IN ANY JURISDICTION, AND ANY STATEMENTS MADE BY KENECT TO ITS CLIENT(S) SHALL NOT CONSTITUTE LEGAL ADVICE. USE OF THE KENECT SERVICE DOES NOT GUARANTEE COMPLIANCE WITH APPLICABLE LAWS IN ANY JURISDICTION.
16. LIMITATIONS OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KENECT AND ITS AGENTS, DIRECTORS, SHAREHOLDERS, MEMBERS, PARTNERS, MANAGERS, OFFICERS, EMPLOYEES, INFORMATION PROVIDERS, VENDORS, SUPPLIERS, ATTORNEYS OR AFFILIATES SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, GENERAL, SPECIAL, DIRECT, INDIRECT, COMPENSATORY, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOST, BREACHED OR INACCURATE DATA, LOSS OF CONFIDENTIALITY OR PRIVACY, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR OTHER INTANGIBLE LOSSES, HOWEVER CAUSED (INCLUDING VIA A CYBERATTACK OR OTHER CYBER-RELATED INCIDENT), WHETHER IN CONTRACT, TORT, NEGLIGENCE, MALPRACTICE, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, RESULTING FROM OR ARISING OUT OF THE AGREEMENT OR THE PERFORMANCE THEREOF, WITHOUT RESPECT TO NOTICE OF THE POSSIBILITY THEREOF. KENECT’S CUMULATIVE, AGGREGATE AND MAXIMUM LIABILITY TO CLIENT FOR ANY LOSSES, CLAIMS, BREACHES OR DAMAGES UNDER THE AGREEMENT WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY CLIENT UNDER THE AGREEMENT DURING THE ONE (1) MONTH PRIOR TO SUCH LOSS, OR (B) THE AMOUNT OF $5,000.00.
If you are a California resident, you agree to waive California Civil Code Section 1542, and any similar provision in any other jurisdiction (if you are a resident of such other jurisdiction), which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
17. THIRD PARTY PRODUCTS AND INTEGRATIONS.
If Client uses Third Party Products in connection with or otherwise made available through the Kenect Services, those products may make Third Party Content available to Client and may access Client’s Data contained in the Kenect Service. Kenect does not warrant or support Third Party Products or Third Party Content (whether or not these items are designated by Kenect as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Kenect Services, including their modification, deletion, disclosure or collection of Client Data. Kenect is not responsible in any way for Client Data once it is transmitted, copied or removed from the Kenect Services. Client agrees and acknowledges that use of such Third Party Products may require Client to enter into separate terms and conditions with such third-party. Kenect is not a party to such terms and shall not be liable thereunder. Client may use Kenect’s Add-on Platform to enable non-Kenect Add-Ons for use with the Kenect Services. If Client is a Covered Entity, it is solely Client’s responsibility to ensure that any Third Party Products and the vendors thereof, comply with applicable law as set forth in the Business Associate Agreement.
18. DISPUTE RESOLUTION
If a dispute arises between the Parties related to the Agreement or the Kenect Service provided therefrom, and the dispute cannot be settled through informal negotiations, the Parties agree to resolve their dispute as follows:
18.1. Arbitration. Except as expressly provided otherwise in the Agreement, upon the request of either Party, any and all disputes or claims, whether past, present or future, arising out of, relating to, or resulting from the Agreement, including, without limitation, Kenect’s performance of the Kenect Service, termination of the Agreement, or the relationship between the Parties (collectively, “Claim(s)”), shall be subject to binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect (the “Rules”) (excluding the Optional Procedures for Large, Complex Commercial Disputes) unless the parties mutually agree on another administrator or other procedures. If the AAA is unable to serve as administrator and the parties cannot agree on a replacement, a court with jurisdiction will select the administrator or arbitrator, who must comply with the terms of this arbitration provision. The term “Claim(s)” shall be interpreted broadly and includes, without limitation, contract and tort disputes, disputes arising under common law, statutes, ordinances, rules and regulations and data breach and privacy disputes. “Claim(s)” also includes initial claims, counterclaims, cross-claims, third-party claims, and federal, state, local, and administrative claims, and claims which arose before the effective date of this arbitration provision. Notwithstanding the foregoing, any dispute concerning the validity or enforceability of this arbitration provision must be decided by a court; any dispute concerning the validity or enforceability of the Agreement as a whole is for the arbitrator. This arbitration provision is intended to benefit, and may be enforced by, a Party’s parent companies, subsidiaries, affiliates, successors and assigns; the employees, officers and directors of the Party and the foregoing entities; and any other person or entity named as a defendant or respondent in a Claim asserted by one Party against the other Party.
The Federal Arbitration Act, 9 U.S.C. § 1, et seq., governs the interpretation and enforcement of this arbitration provision because the Agreement relates to a transaction involving interstate commerce. To the extent that state law is applicable under the FAA, Utah law shall govern. Such arbitration shall be held in Salt Lake City, Utah before a single neutral arbitrator selected in accordance with the Rules. The arbitrator must be an attorney with at least ten years of experience or a retired judge, unless the parties otherwise agree. The arbitrator will apply the same statutes of limitation and privilege rules that a court would apply if the matter were pending in court. The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including discovery motions, motions for summary judgment and motions to dismiss and demurrers, prior to any arbitration hearing. The arbitrator shall issue a written decision on the merits and will have the power to award any remedies, including attorneys’ fees and costs, available under applicable law in an individual case. The arbitrator’s award will be final and binding, except for any appeal rights under the FAA. Judgment upon the arbitrator’s award may be entered in any court having jurisdiction. No finding, award or judgment from any other arbitration will impact the arbitration of any Claim, and no finding, award or judgment from this arbitration will impact any other arbitration. If this arbitration provision conflicts with the Rules or other terms of the Agreement, this arbitration provision shall govern.
JURY TRIAL WAIVER: BY AGREEING TO SUCH ARBITRATION OF SUCH DISPUTES AND CLAIMS, THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHT TO A JURY TRIAL RELATING THERETO, INCLUDING ALL CLAIMS UNDER COMMON LAW AND FEDERAL, STATE, MUNICIPAL OR OTHER JURISDICTIONAL STATUTES, RULES OR REGULATIONS.
CLASS ACTION WAIVER: NEITHER PARTY WILL HAVE THE RIGHT TO: (i) PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE; (ii) ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; OR (iii) JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST A PARTY WITH CLAIMS BY OR AGAINST ANY OTHER PERSON. THE ARBITRATOR WILL HAVE NO AUTHORITY TO CONDUCT ANY SUCH CLASS, PRIVATE ATTORNEY GENERAL, MULTIPLE-PARTY OR OTHER REPRESENTATIVE PROCEEDING. Arbitration shall be initiated by commencing an arbitration proceeding in accordance with the Rules. A Party may also move to compel arbitration of Claims that the other Party has filed in court. If the motion is granted, the Party asserting the Claims shall commence the arbitration proceeding. Even if all Parties have opted to litigate a Claim in court, a Party may elect arbitration with respect to any Claim made by a new party or any Claim later asserted by a Party in that or any related or unrelated lawsuit (including a Claim initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis). Nothing in that litigation shall constitute a waiver of any rights under this arbitration provision.
18.2. Remedy. Except as provided otherwise by the Rules and the Agreement, if a Party elects to arbitrate, arbitration will be the sole, exclusive and final remedy for any dispute between the Parties and neither Party shall be permitted to pursue court action regarding Claims that are subject to arbitration. The Agreement does not prohibit either Party from pursuing an administrative claim, but does preclude each Party from pursuing court action regarding any such claim.
If any portion of this arbitration provision is held to be invalid or unenforceable, the remaining portions will nevertheless remain in force, subject to two exceptions: (i) if a determination is made that the Class Action Waiver is unenforceable, and that determination is not reversed on appeal, then this arbitration provision (except for this sentence) will be void in its entirety; and (ii) if a court determines that a public injunctive relief Claim may proceed notwithstanding the Class Action Waiver, and that determination is not reversed on appeal, then the public injunctive relief Claim will be decided by a court, any individual Claims will be arbitrated, and the Parties will ask the court to stay the public injunctive relief Claim until the other Claims have been finally concluded. This arbitration provision shall survive termination, suspension, breach or expiration of this Agreement or any bankruptcy.
18.3. Injunctive Relief. Violation of the Agreement will cause irreparable injury and money damages will not provide an adequate remedy therefor. Both parties hereby consent to the issuance of injunctive relief as permitted by the Rules, without posting any bond or other security, compelling both parties to comply with the Agreement. Both parties shall be entitled to recover reasonable costs and attorneys’ fees in any successful injunctive action under this Section.
19.1. Assignment. The Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns. Neither Party may assign the Agreement without the advance written consent of the other Party, except that Kenect may assign the Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign the Agreement except as expressly authorized under this Section 19.1 will be null and void.
19.2. Notices. Any notice or communication to Kenect under the Agreement must be in writing. Client must send any notices under the Agreement (including breach notices) to Kenect at the following address: 1221 S. Valley Grove Way, Suite 400, Pleasant Grove, Utah 84062 and include “Attn. Legal Department” in the subject line. Kenect may send notices to the e-mail addresses on Client’s account or, at Kenect’s option, to Client’s last-known postal address. Kenect may also provide operational notices regarding the Kenect Service or other business-related notices through conspicuous posting of such notice on Kenect’s website, Kenect’s mobile application or the Kenect Service. Each Party hereby consents to receipt of electronic notices. Kenect is not responsible for any automatic filtering Client or its network provider may apply to email notifications.
19.3. Publicity. Unless otherwise specified in the applicable Enrollment Form, Kenect may use Client’s name, logo and marks to identify Client as a Kenect Client on Kenect’s website, mobile application and other marketing materials.
19.4. Claims of Copyright Infringement. We comply with the “safe harbor” provisions of the Digital Millennium Copyright Act of 1998. If you see any materials on the website or mobile application that you believe violate any copyright rights, including yours, please send an e-mail describing the violation you believe exists to our copyright agent, who can be reached at firstname.lastname@example.org. If we become aware of any such items on the website or mobile application, we will promptly take action to ensure we are in full compliance with all privacy and copyright laws.
19.5. Subcontractors. Kenect may use subcontractors and permit them to exercise the rights granted to Kenect in order to provide the Kenect Service and related services under the Agreement. These subcontractors may include, for example, Kenect’s hosted service and CDN providers. However, subject to all terms and conditions herein, Kenect will remain responsible for: (i) compliance of its subcontractors with the terms of the Agreement; and (ii) the overall performance of the Kenect Services if and as required under the Agreement.
19.6. Subpoenas. Nothing in the Agreement prevents Kenect from disclosing client data to the extent required by law, subpoenas, or court orders, but Kenect will use commercially reasonable efforts to notify Client where permitted to do so.
19.7. Independent Contractors. The Parties to the Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither Party has the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
19.8. Force Majeure. Neither Party will be liable for any delay or failure to perform its obligations under the Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, disruption in transportation systems, disruption of labor force, national or state emergency, epidemic, pandemic, communicable disease outbreak, failure or reduction of power or telecommunications or data networks or services, or government act or order.
19.9. Amendments; Waivers. Kenect may update or modify these Terms (including referenced policies and other documents) from time-to-time by posting a revised version or by notification via the email associated with Client’s account. If Kenect modifies these Terms during Client’s Subscription Term, the modified version will take effect upon Client’s next Subscription Term renewal, except that: (i) changes to the policies referenced herein (such as the Acceptable Use Policy) will take effect thirty (30) days from the date of posting; (ii) if Kenect launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Client’s acceptance; and (iii) any updated or modified Terms will take effect immediately for free access Subscriptions or if Client enters a new Enrollment Form or the Subscription changes following the modification. Client may be required to click through the updated Terms to show acceptance; in any event, continued use of free access Subscriptions or any renewal of a Subscription Term following the update shall constitute acceptance of the updated Terms. If Client does not agree to the updated Agreement after it takes effect, Client will no longer have the right to use the Kenect Service. Except as otherwise described in this Section, any modification or amendment to the Agreement, including these Terms, must be made in writing and signed by a duly authorized representative of each Party (each in its discretion). No amendment to the arbitration provision will apply to any Claim that is pending in court or in arbitration at the time of the amendment. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by a duly authorized representative of the waiving Party.
19.10. Severability. Except as set forth in the arbitration provision, if any provision of the Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that the Agreement may otherwise remain in effect.
19.11. No Third Party Rights. Except as set forth in the arbitration provision, nothing in the Agreement confers on any third party the right to enforce any provision of the Agreement. Client acknowledges that each Subscription only permits use by and for the legal entity or entities identified in the Enrollment Form and not any Affiliates.
19.12. Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce the Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.
19.13. Entire Agreement. The Agreement, including these Terms and any applicable Subscription Documentation, constitutes the full and complete understanding and agreement of the Parties with respect to the subject matter herein and supersedes all prior or contemporaneous oral or written understandings and agreements of the Parties with respect to the Kenect Technology or any other subject matter covered by this Agreement. Any terms provided by Client (including as part of any purchase order or other business form used by Client) are for administrative purposes only, and have no legal effect.
19.14. Governing Law; Jurisdiction and Venue. The Agreement is governed by the laws of the State of Utah and the United States, without regard to choice or conflict of law rules thereof. The arbitration provision is governed by the FAA. If a dispute is not arbitrated, the exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state courts located in Salt Lake County, Utah or the United States District Court for the District of Utah, and both parties submit to the personal jurisdiction of these courts.
19.15. Survival. The following sections survive any expiration or termination of this Agreement: 2 (Definitions), 4 (Use Rights), 5 (Client Data), 8 (Fees and Payment), 10 (Term and Termination), 11 (Confidential Information), 12 (Non-Solicitation/Non-Competition),13 (Kenect Technology), 14 (Indemnification), 15 (Disclaimers), 16 (Limitation of Liability), 17 (Third Party Products and Integrations), 18 (Dispute Resolution), and 19 (General).
20. SPECIAL CONSIDERATION - USE BY CHILDREN.
If you are a school, district, or teacher, you represent and warrant that you are solely responsible for complying with the Children’s Online Privacy Protection Act of 1998 and its rules (“COPPA”), meaning you must obtain consent from all parents whose children are under 13 years of age. If you are a teacher, you represent and warrant that you are authorized by your school or district to use the Kenect Services. You also represent and warrant that you are entering into these Terms on behalf of your school or district. Additionally, if you are a school, district, or teacher providing consent on behalf of parents or guardians, you may be required to provide adequate school credentials and a valid school email address to verify your identity.