TERMS OF SERVICE

    

Last updated: February 25,  2015

The following terms of service (“Terms of Service”) consist of both End User Terms and Online Order Terms and, where applicable, Value-Added Service (“VAS”) Terms. The End User Terms and VAS Terms apply to each user of Kigo (as defined below) software, services, web services and websites (the “Kigo System”) and govern access to and use of the Kigo System. The Online Order Terms and VAS Terms supplement the Kigo order form (“Order Form”) that is executed when Kigo clients (“Clients”) request access to the Kigo System. Together, the Order Form (if any) and these Terms of Service form the “Services Agreement” establishing the client’s account and governing the client’s rights to access and use the Kigo System and receive related services from Kigo.

As used in these Terms of Service, “Kigo”, “We” or “Us” means Kigo Inc., a Delaware corporation with an address at 4000 International Parkway, Carrollton, Texas 75007 and/or its Affiliates (as defined in Section 30 below) who provide any VAS to a Client hereunder.

If you, either an individual or an entity (“You”), have subscribed to the Kigo System by executing an Order Form, You have consented to be bound by these Terms of Service. ADDITIONALLY, BY CLICKING ON THE “ACCEPT” BUTTON, INSTALLING OR USING THE KIGO SYSTEM, OR REQUESTING SOFTWARE, WEBSITE DEVELOPMENT, HOSTING OR OTHER PRODUCTS OR SERVICES FROM KIGO, YOU ARE CONSENTING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU ARE ACCEPTING THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS OF SERVICE, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY.

These Terms of Service constitute a legally binding agreement between You and Kigo (or, where specified in the Order Form, solely between You and the Kigo Affiliate providing a purchased VAS, with respect to such VAS). If You do not agree to all of the Terms of Service, You are not permitted to access to the Kigo System. If You do not wish to be bound by these Terms of Service, please contact Kigo immediately to request cancellation of Your account.

END USER TERMS

The following provisions of these Terms of Service (“End User Terms”) apply to each Authorized User of the Kigo System:

1. LICENSE TO USE THE KIGO SYSTEM

The Kigo System is protected by United States (“U.S.”) and international copyright laws, international treaty provisions and applicable law. Kigo hereby grants to You a non-exclusive, non-transferable, limited license to use the Kigo System and related user documentation on the terms and conditions set forth herein. The Kigo System is licensed only for Your use. You may use the Kigo System only in accordance with the applicable documentation and to perform the functions for which it is designated and for the purpose authorized by these Terms of Service.

2. SUBSCRIPTION

The Kigo System is licensed on a subscription basis pursuant to the subscription terms and conditions incorporated herein. We may provide updates to the Kigo System on a periodic basis, and any such updates will replace the prior version of the Kigo System. Each version of the Kigo System may operate differently and may have different, more, or fewer features than prior versions. You shall not permit the use of any version of the Kigo System by any other person nor shall You use the Kigo System at any time after the license expires. Each update will be deemed to be part of the Kigo System and shall be governed by these Terms of Service.

3. OWNERSHIP OF KIGO SYSTEM, DATA AND CONTENT

Kigo is the exclusive owner of the Kigo System and Your use of the Kigo System does not provide You any right or interest in any of Kigo’s intellectual property, including but not limited to common designs, layouts, content, program code, scripts, database structures, proprietary strategies and processes, and other intellectual property of Kigo with the exception of user-uploaded content and data. Graphic designs or content created by Kigo specifically for You as part of Kigo’s professional service offering belong to You and can be used in other contexts; all other design elements (including customizable website templates) are the sole property of Kigo

4. NO REVERSE ENGINEERING

You acknowledge that the Kigo System and its structure, organization, and source code constitute valuable trade secrets of Kigo. Accordingly, You agree not to (a) modify, adapt, alter, translate, or create derivative works from the Kigo System; (b) sublicense, lease, rent, loan, or otherwise permit a third party to use the Kigo System; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Kigo System; or (d) otherwise use the Kigo System except as expressly allowed in these Terms of Service. You shall cooperate and make Your facilities, information, data and equipment available to Kigo in a timely manner when helpful for completion of customer specific implementation or troubleshooting.

5. CERTAIN RESTRICTIONS

Unless expressly and specifically permitted to do so under the terms of the Services Agreement, and then only in the exact manner specified, You may not (i) permit third parties to use the Kigo System; (ii) remove or alter any trademark, service mark, logo, copyright, or other proprietary notices in or on the Kigo System; (iii) place on any portion of the Kigo System materials that are illegal, obscene, dangerous or libelous, or that violate, infringe or misappropriate any copyright, trademark, patent, trade secret, or other statutory or common law intellectual property right. Kigo reserves the right, but does not assume the obligation, to remove from any portion of the Kigo System any content or materials that violate the provisions of these Terms of Service; (iv) access the Kigo System if you are a direct competitor of Kigo, except with Kigo’s express written consent; or (v) access the Kigo System for purposes of monitoring its availability, performance, or functionality, or any other benchmarking or competitive purpose. You agree not to use the Kigo System, or any information obtained through the Kigo System, for any unlawful or unauthorized purpose. You agree that Kigo has no obligation to retain any of Your content, data or material after the expiration or termination of the applicable Services Agreement and that such content, data or material may be irretrievably deleted after such expiration or termination.

You agree not to publicly criticize, ridicule, disparage or defame Kigo or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image (including, but not limited to, any statements made via websites, blogs, postings to the internet, or emails and whether or not they are made anonymously or through the use of a pseudonym). You agree to provide full cooperation and assistance in assisting Kigo to investigate such statements if We reasonably believe that You are the source of the statements.

You agree not to register domain names that are derivatives of or deceptively similar to Kigo or its trademarks or that have the purpose or effect of criticizing, ridiculing, disparaging, or defaming Kigo, and its products, services, policies, directors, officers, shareholders, or employees.

6. AUTHORSHIP MARK AND CLIENT REFERENCES

You agree that Kigo can place a reasonably sized and positioned logo and/or text link on website pages and emails included in the Kigo System, including on publicly accessible pages of Your website. You also agree that Kigo may reference its relationship with You for marketing purposes.

7.PAYMENT

You or the person designated as the billing contact for Your Kigo account (“Billing Contact”), must provide Kigo with a valid credit card in order to activate Your account. You and/or Billing Contact may authorize Kigo to automatically charge a credit card for all services (including any VAS) that You (and/or Your representatives) request, whether through an Order Form, online through the Kigo System, or otherwise. Alternatively, You and/or Billing Contact can arrange for pre-payment of at least six months’ estimated charges and pay by ACH bank wire or credit card. Upon receiving notice that Your balance has reached $500 or less, You and/or Billing Contact must send another pre-payment equal to or greater than the first pre-payment. The 10% “credit” for making a pre-pay is only applicable to the initial pre-payment and prepaid amounts are not refundable. Failure to either send additional funds or switch to the credit card option and pay any past due amounts could result in suspension of Your services. You and/or Billing Contact will receive a receipt for all payments processed against the credit card or account by email and/or fax. If paying by credit card, Billing Contact agrees to keep credit card information updated, and to provide Kigo with a new valid account number if the old card is deactivated or does not have sufficient credit available to pay Your fees. Kigo reserves the right to place Your account on hold, suspend Your access to the Kigo System and/or terminate the applicable Services Agreement or other services if You are overdue in paying Us any amounts due for Kigo System access or other services You request. If You wish to dispute any fee that Kigo has charged to Billing Contact’s credit card, You agree to discuss such dispute with Kigo and work towards a resolution. You expressly agree not to dispute fees with Your issuing credit card company, which could result in a “charge back” to Kigo. Declined, refused and/or returned payments may result in a $50.00 service charge payable immediately. Billing Contact and payment information must be kept current at all times and changes provided to Kigo within 30 days of such changes. Notice should be sent to billing@kigo.net.

8. CUSTOMER CONTENT

Kigo has the right to store and/or transmit information You provide through the Kigo System and You agree to indemnify and hold Kigo harmless from and against any and all claims or causes of action that may arise with respect to such information. You are solely responsible for obtaining any and all necessary consents and clearances required to lawfully make use of any and all intellectual property rights through the Kigo System, including without limitation clearances and consents with respect to Your domain name(s). You agree that all information submitted to, stored or distributed by You in connection with the Kigo System (i) shall not be false, inaccurate, fraudulent or misleading; (ii) shall not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (iii) shall not violate any law, statute, ordinance or regulation; (iv) shall not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (v) shall not contain sexually explicit, obscene, or pornographic content; (vi) shall not contain speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise); (vii) shall not contain graphic violence; (viii) shall not express statements or positions regarding politically sensitive or controversial issues (e.g., euthanasia, abortion, capital punishment), or contain other political content (e.g., lobbyists, PAC sites, political campaigns); (ix) shall not contain any viruses, trojan horses, worms, time bombs, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any Kigo System, data or personal information; and (x) shall not create liability for Kigo or cause it to lose (in whole or in part) customers or the services of service providers or other suppliers. Kigo reserves the right to monitor and limit or deny access to automated processes (bots) that harvest copyrighted online content without explicit permission from Kigo, regardless of whether such content is owned by You, Kigo, or third parties. Kigo strongly recommends that You, with the help of an attorney, create Your own set of terms and privacy policy and other agreements applicable to Your business and Your jurisdiction. To comply with the law, be aware that terms and policies must be tailored to Your business and applicable jurisdiction. If You choose to use generic “document templates” provided by Us, You agree that (a) You are aware that Kigo is not a law firm or lawyer, does not provide legal advice, and has made no investigation if, and makes no representation or warranty as to whether, such materials are applicable to or suitable for Your business or jurisdiction or are in compliance with applicable laws, and (b) You are voluntarily and knowingly choosing not to accept our recommendation that You seek Your own legal advice regarding terms and privacy policy that are applicable to Your business, jurisdiction and applicable laws. You waive any and all claims and causes of action against Kigo, and agree to indemnify and hold Kigo harmless from any and all results, losses, liabilities, claims, damages, judgments, costs or expenses (including attorneys’ fees) arising with respect thereto or resulting therefrom.

9. USE OF KIGO SYSTEM

You hereby agree as follows: (i) You shall not use the Kigo System for “spamming,” as determined by Kigo in its reasonable discretion; (ii) You shall keep secure any identification, password and other confidential information relating to Your site and shall notify Kigo immediately of any known or suspected unauthorized use of Your site or breach of security, including loss, theft or unauthorized disclosure of passwords or other security information; (iii) You shall not use the Kigo System for any unlawful purpose; (iv) You shall not engage in any other conduct that restricts or inhibits any other person from using or enjoying the Kigo System, or which, in the judgment of Kigo, exposes Kigo, or any of its customers or suppliers to any liability or detriment of any type; and (vi) You shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Kigo System, and You shall be responsible for all charges related thereto. The Kigo System allows You to send emails to people with whom You have an existing business relationship. All emails sent must comply with applicable laws and contain an opt-out link and full address information. Unless explicitly authorized by Kigo, You are not allowed to send more than two thousand five hundred (2,500) emails per month through the Kigo System.

10. SECURITY

You agree to use Your best efforts to prevent access to the Kigo System through login and password by anyone other than Yourself, including but not limited to keeping such information strictly confidential, notifying Kigo immediately if You discover loss of such information or access thereto by another party not under Your control and supervision, and by using a login and password not easily guessed by a third party. Although Kigo will not be liable for Your losses caused by any unauthorized use of Your account, You may be liable for the losses of others due to such unauthorized use.

11. INTERNATIONAL CUSTOMERS

You may not access, download, use or export the Kigo System, or the content provided on or through the Kigo System, in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all applicable foreign and domestic export laws, restrictions and regulations, and to not directly or indirectly provide or otherwise make available any services or products of Kigo in violation of any such restrictions, laws or regulations. As applicable, you shall obtain and bear all expenses related to any necessary licenses, authorizations, and/or exemptions with respect to your own use of the services of Kigo outside the U.S. Neither the services or products of Kigo nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, into any country subject to U.S. trade sanctions (Supplement No. 1 to Part 740, Export Administration Regulations, Country Group E:1), to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions. By agreeing to these Terms of Service, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. You further agree to provide Us such information as We may request from time to time to confirm compliance with the foregoing and, without limiting any other rights We may have hereunder, You agree that Your rights to access the Kigo System may be suspended or terminated at any time pending receipt of information satisfactory to Kigo to confirm compliance with the foregoing and all applicable laws.

12. INFORMATION COLLECTION AND USE

By using the Kigo System, You authorize Kigo to access data stored on or transmitted through the Kigo System to conduct research, operate and improve the Kigo System and provide anonymous reporting for internal and external clients and business associates.

13. THIRD PARTY ADVERTISERS

Certain advertising information may be displayed through the Kigo System at Kigo’s sole discretion. The display of advertising information shall not entitle You to any advertising fees or revenues from such advertising unless otherwise explicitly agreed to in writing by Kigo. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Kigo System, including payment and delivery of related goods through the Kigo System, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such advertiser. You agree that Kigo shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.

14. LINKS AND THIRD PARTY SERVICES

The Kigo System may include links to other Internet sites or resources. The Kigo System also may provide functionality and information that facilitates Your ability to engage or contract with third party service providers, including without limitation Kigo’s portal partners. When You engage such third party providers, You authorize Kigo to transmit to such providers information about You and your properties that is stored in the Kigo System as requested by such third party providers. However, because Kigo has no control over such sites, resources or third parties, You acknowledge and agree that Kigo (i) is not responsible for the availability of such external sites or resources and (ii) is not responsible or liable for any content, advertising, products, services or other materials made available by such third parties or through such sites or resources, even if such third party is identified as a Kigo “portal partner,” “preferred partner” or any similar designation, or if such third party’s services have been “certified” as being compatible with the Kigo Services. You further acknowledge and agree that Kigo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, advertising, products or services made available by such third parties or through any such site or resource.

15. PRIVACY

The following Kigo Privacy Policy (http://kigo.net/privacypolicy), as modified from time to time, is incorporated by reference in and form part of these Terms of Service. We recommend that you review the Privacy Policy periodically for any changes that may have been made. Your continued use of the Kigo System, services, and websites subsequent to any changes made after your initial consent means that you agree to be bound by those changes.

16. INTERNATIONAL DATA TRANSFERS

Personal data collected from Clients based in the European Union (EU) may be transferred outside of the EU, in particular to the United States of America and any other countries where Kigo has offices. This personal data may include personal information from citizens residing within the European Union, and as such, the EU Data Protection Directive may apply to those transfers. Data transfer agreements (based on the EU model clauses) have been put in place with EU-based clients to ensure protection of personal data in line with European data protection requirements

17. MODIFICATIONS TO TERMS AND POLICIES

Kigo reserves the right to modify these Terms of Service (including without limitation the End User Terms and the Online Order Terms), the foregoing policies, and the other terms and conditions set forth on any Kigo service or website, without prior notice, at any time and from time to time. Any such modification is effective upon the posting of same by Kigo on its website. Kigo also may notify You of any modifications by email or other correspondence to Your designated contact address. Kigo recommends that You review these Terms of Service periodically for any changes that may have been made. Your continued use of the Kigo System, services or websites subsequent to any such changes means that You agree to be bound by those changes. The most current version of these Terms of Service and such polices supersedes all previous versions.

18. DISCLAIMERS

THE KIGO SYSTEM AND ALL INFORMATION PROVIDED BY KIGO IN CONNECTION WITH THE KIGO SYSTEM ARE PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY OTHER WARRANTY, CONDITION, GUARANTY, OR REPRESENTATION, WHETHER ORAL OR IN WRITING, AND YOU ACCEPT THE KIGO SYSTEM, AS GENERALLY PROVIDED OR AS CUSTOMIZED FOR YOUR USE, AT YOUR OWN RISK. KIGO’S SYSTEM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KIGO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

19. LIMITATION OF LIABILITY

IN NO EVENT SHALL KIGO OR ANY OF ITS AFFILIATED OR RELATED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE KIGO SERVICES, THE KIGO SYSTEM, THIS AGREEMENT OR THE PARTIES’ ACTIVITIES HEREUNDER, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND EVEN IF KIGO IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT LIABILITY IS ASSESSED AGAINST KIGO OR ANY OF ITS AFFILIATED OR RELATED PARTIES, THE AGGREGATE LIABILITY OF SUCH PARTIES SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE KIGO SYSTEM MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE THAT THE EVENT GIVING RISE TO SUCH ACTION OCCURRED.

20. RELATIONSHIP

Kigo’s relationship with You shall be that of an independent contractor and nothing in these Terms of Service shall be construed to create a partnership, joint venture, or employer-employee relationship. You shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to the license to or use of the Kigo System. Kigo may subcontract or otherwise delegate its obligations under these Terms of Service without Your consent and in Kigo’s sole discretion.

21. CONFIDENTIALITY

“Confidential Information” means non-public, confidential or proprietary information created or acquired by Kigo or its Affiliates, including, without limitation, business plans, partnership/affiliation arrangements, client lists, financing arrangements, technical data, marketing plans, software, source codes, programming techniques, ranking techniques, sources of services and goods, costs, profits, methods of obtaining new clients, payments and pay structure, login and passwords, tracking codes, competitive analyzes, personnel information, and financial data. Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of disclosure by You or anyone to whom You transmit the information, (ii) becomes available to You on a non-confidential basis from a source other than Kigo who, to Your knowledge, is not bound by a confidentiality agreement with Kigo, (iii) was rightfully known to You or in Your possession without restriction prior to the date of disclosure by Kigo, or (iv) is independently developed by You without benefit of or reference to the Confidential Information. You agree not to publish, disclose, copy, disseminate or in any manner utilize Confidential Information, in Your business or otherwise, for any purpose other than as contemplated herein unless compelled to do so by subpoena or compliance with other applicable law, prompt prior notice of which will be given to Kigo. However, You may disclose the Confidential Information to any of Your Affiliates who have a legitimate need to use the Confidential Information under this these Terms of Service, provided You shall remain liable for such Affiliate’s use of the Confidential Information and compliance with these Terms of Service. You shall use commercially reasonable efforts to protect and prevent disclosure of the Confidential Information.

22. CONSENT TO RECEIVE ELECTRONIC RECORDS

By using the Kigo System, You signify Your express consent to receive information from Kigo in electronic format. You will need a computer with browser, email and Internet access to receive such electronic records, and You also may need Adobe Acrobat Reader, available for free at www.adobe.com. Electronic records may include terms and conditions, agreements, privacy policies, and other items that You should print and retain for Your records.

23. INDEMNIFICATION

You hereby agree to indemnify and hold Kigo and its Affiliates and related parties harmless from and against any damages, losses, liabilities, judgments, costs or expenses (including reasonable attorneys’ fees and costs) arising out of any claim made by a third party relating to Your use of the Kigo System or any breach or violation of these Terms of Service or the applicable Services Agreement.

24. ASSIGNMENT

The right to access the Kigo System is personal to You and You may not transfer by assignment, sublicense, or any other method the service or the right to access or use the Kigo System to any other person or entity. Any attempt by You to transfer Your rights or obligations under these Terms of Service or any applicable Services Agreement without obtaining the prior written consent of Kigo (including, without limitation, by operation of law or through Your change of ownership) shall be null and void. You agree that Kigo may assign its rights and/or delegate its obligations under these Terms of Service or any applicable Services Agreement to any third party, including its Affiliate, in Kigo’s sole discretion and without notice.

25. WAIVER

Kigo’s failure to act with respect to a breach by You or others of these Terms of Service or any applicable Services Agreement does not waive Kigo’s right to act with respect to subsequent or similar breaches.

26. REPRESENTATION

YOU HEREBY REPRESENT TO KIGO THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE AUTHORIZED TO AGREE TO AND ENTER INTO THESE TERMS OF SERVICE, AND ANY APPLICABLE SERVICES AGREEMENT. YOU ARE ALSO REPRESENTING THAT YOU ARE ENTERING INTO THESE TERMS OF SERVICE AND ANY APPLICABLE SERVICES AGREEMENTON YOUR OWN BEHALF, HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO SUCH TERMS AND AGREEMENT, AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH HEREIN. AT ANY TIME UPON REQUEST BY KIGO, YOU AGREE TO SIGN A NON-ELECTRONIC VERSION OF THESE TERMS OF SERVICE AND ANY APPLICABLE SERVICES AGREEMENT AND ANY OTHER AGREEMENTS OR STATEMENTS REASONABLY NECESSARY FOR KIGO TO PROVIDE AND ACCOUNT FOR THE KIGO SYSTEM.

27. GENERAL

Kigo is based in Denton County, Texas, in the United States of America. Kigo makes no claims that the Kigo System is appropriate or may be used or downloaded outside of the United States. Access to or use of the Kigo System may not be legal by certain persons or in certain countries. If You access or use the Kigo System from outside the United States, You do so at Your own risk and are responsible for compliance with the laws of Your jurisdiction.

28. GOVERNING LAW

The Kigo System (excluding third party linked sites) is controlled by Kigo from its offices within the State of Texas. It can be accessed from all 50 states in the United States as well as from other countries around the world to the extent permitted by site. As each of these places has laws that may differ from the laws of the State of Texas, by accessing the Kigo Systems, both You and Kigo agree that the statues and laws of the State of Texas shall apply to any actions or claims arising out of or in relation to these Terms of Service or Your use of the Kigo System, without regard to conflicts of laws principles thereof. You and Kigo also agree and hereby submit to the exclusive personal jurisdiction of and venue in the State of Texas and agree that any claim with respect to these Terms of Service or the subject matter hereof or activities hereunder shall be filed only in the courts of the State of Texas, and agree that any legal proceedings shall be conducted in English. Kigo makes no representation that the Kigo System or any materials on our various websites are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is prohibited. These Terms of Service shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. You agree not to engage in any class action claim against Kigo.

29. FORCE MAJEURE

Neither party will be deemed in breach of these Terms of Service to the extent that performance of its obligations are delayed or prevented by reasons of force majeure, such as riots, acts of terrorism, fire, flood, earthquake, acts of government and the like, provided that such party gives the other party written notice thereof promptly and uses its best efforts to continue to perform its obligations.

 

30. ENTIRE AGREEMENT

These Terms of Service, together with any applicable Order Form, comprise the entire agreement between You and Kigo and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between You and Kigo regarding the subject matter contained herein. Any purported oral or written modification to these Terms of Service that is not expressly contained in the currently posted Terms of Service shall be null and void unless memorialized in a writing signed by both You and Kigo. Notwithstanding the foregoing, nothing contained in this section shall prohibit or limit Kigo from modifying these Terms of Service, with such modifications effective upon the posting of same by Kigo on its website.

 ONLINE ORDER TERMS

The following provisions of these Terms of Service (“Online Order Terms”) are incorporated by reference into each Order Form and Services Agreement relating to the Kigo System:

31. SERVICES AGREEMENT

The following Online Order Terms are an integral part of the Services Agreement between Kigo and Kigo Clients who subscribe to the Kigo System or order other Kigo products, services or software (collectively, “Kigo Services”) through the execution of an Kigo Order Form (“Order Form”). As used herein, “You” means the party identified in an executed Order Form. The Services Agreement consisting of the Order Form and these Online Order Terms will be effective as of the date indicated on the signature page of the applicable Order Form or such later date as the executed Order Form is delivered to Kigo (the “Effective Date”). Please read these Online Order Terms carefully before executing an Order Form or using any Kigo Services. By executing an Order Form or installing, accessing or using the Kigo System or Kigo Services, Client accepts these Online Order Terms, and agrees and acknowledges as follows:

32. DEFINITIONS

The following definitions have the meanings assigned to them whenever capitalized throughout these Online Order Terms. Other capitalized terms in these Online Order Terms have the meanings assigned to them in the Order Form. “Affiliates” shall mean a person or entity, directly or indirectly controlled by, controlling, or under common control with another person or entity. “Authorized User” shall mean any staff or contractor employed by Client, property owners with properties managed by Client and vendors with which Client has a formalized business arrangement. “Booking Data” shall mean information regarding all current and future reservations related to a property. “Client Data” shall mean Personal Data that Kigo processes on Client’s behalf in the course of Client’s use of the Kigo System, including Personal Data relating to customers of Client, property owners with properties managed by Client, and vendors with which Client has a formalized business relationship. “Data Controller” shall mean the natural or legal person which determines the purposes and means of the processing of Personal Data. “Data Processor” shall mean a natural or legal person which processes Personal Data on behalf of the Data Controller. “Kigo App” shall mean the web based control panel used to manage Client’s Kigo System. “Kigo Partner” shall mean a company that has entered into an agreement with Kigo to offer services to Kigo Customers. “Kigo Preferred Partner” shall mean a company that has entered into a preferred agreement with Kigo to offer services to Kigo Customers. “Kigo System” shall mean the Kigo software, services, web services and websites, as indicated in a duly executed Order Form, to be used by Client to market and manage short term rental units. “Per Booked Night Fee” shall mean the recurring fee per reservation night indicated on an Order Form that corresponds to a reservation during the applicable month that is associated with Property Information in the Kigo System. Reservations without guest charges are excluded. “Personal Data” shall mean data which relates to a living individual who can be identified (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the Data Controller. “Property Data” shall mean full descriptive information for each rental Unit that Client wishes to include in the Kigo System, including but not limited to the property name, description, location, amenities, calendar, rates, photos and other appropriate information. “Property Information” shall mean Property Data and Booking Data. “Property Sharing” shall mean the ability for one Kigo Client to market and make reservations of another Kigo Client’s Units. Property Sharing requires agreement of both Kigo Client parties, and the availability of suitable properties is not guaranteed by Kigo. Special Per Booked Night Fees apply to shared property reservations. “Unit” is a rental unit entered into the Kigo System by You.

33. REGISTRATION

Client represents and warrants that the information provided in the Order Form and via the Kigo System is current, complete and accurate. Client agrees to update this information through the Kigo System as appropriate.

34. PROPERTY INFORMATION

Client will use the Kigo System as its primary property management software. Client agrees to provide Kigo with complete and accurate Property Information regarding Units managed through the Kigo System, including information regarding guest charges and payments made via the Kigo System, as well as any other descriptive information related to such Units, in a mutually agreeable electronic data transmission format or through manual data entry performed by Client through the Kigo System. Client represents and warrants that this Property Information shall be true, complete and accurate and that Client has the authority to provide the information to Kigo.

35. HOSTING PLATFORM

Client understands and agrees that: (i) the Kigo software, services, web services and websites comprise a web-based property management system and an online platform through which Client may create listings for accommodations offered for rent by Client or its customers, and through which prospective renters may gather information about such accommodations and their availability and enter into rental or other business transactions with Client or its customers; (ii) Kigo is not a real estate broker, agent, insurer, or booking agent; (iii) Kigo is not a party to any rental or other agreement between Client (or its customer) and a guest who rents a Unit or engages in any other transaction with Client (or its customer); and (iv) Kigo shall not have any authority to accept or reject a rental application or other offer to contract with Client or its customer; such authority rests solely with the Client or its customer.

36. TERMS AND CONDITIONS AND POLICIES; MODIFICATIONS

Client’s use of the Kigo System is subject to, and Client hereby agrees to, and will cause all of its Authorized Users to agree and comply with, all of the terms and conditions of the Kigo service and website, as set forth at www.kigo.net/wstos, as the same may be modified from time to time. Kigo reserves the right to modify these Online Order Terms and the other terms and conditions set forth on any Kigo service or website, without prior notice, at any time and from time to time. Any such modification is effective upon the posting of same by Kigo on its website. Kigo also may notify Client of any modifications by email or other correspondence to Client’s designated contact address. Kigo recommends that Client review these Online Order Terms periodically for any changes that may have been made. Client’s or its Authorized Users’ continued use of the Kigo System, services or websites subsequent to any such changes means that Client agrees to be bound by those changes. The most current version of these Online Order Terms supersedes all previous versions.

37. DATA PRIVACY

Client may disclose Client Data to Kigo as part of Client’s use of the Kigo System. Client is the Data Controller of Client Data, and Kigo will process Client Data on Client’s behalf as Client’s Data Processor. Accordingly, Kigo will process Client Data only in accordance with Client’s lawful instructions and will implement and maintain appropriate technical and organizational security measures to protect Client Data from and against accidental or unlawful destruction and against accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing. If Client is located in the European Union, then Kigo will at all times provide an adequate level of protection for any Client Data that Kigo processes outside the European Economic Area in compliance with Articles 25 and 26 of the Data Protection Directive 95/46.

38. KIGO PARTNER RELATIONSHIPS

If Client chooses to activate any services provided by a Kigo Preferred Partner or Kigo Partner, Client grants the explicit right for Kigo and the Kigo Preferred Partner or Kigo Partner to share Property Information and other Client information, including but not limited to customer and reservation data and Client Data for operational, billing and auditing purposes. See Section 14 above for additional terms regarding links to, and services provided by, third party providers.

39. FEES

Client agrees to pay the fees associated with the Kigo System and any purchased Value-Added Service (VAS), as set forth in the Order Form or the Kigo App Store. Kigo may adjust such fees once per calendar year, with thirty (30) days’ prior written notice. Kigo offers multiple service level plans (each a “Plan”) that fit different company profiles. Client can switch Plans for the following month, provided that Client gives 10 days’ advance written notice to Kigo’s Client Success Department. If Client exceeds the number of active Units allowed in Client’s current Plan tier, then Client’s account and applicable pricing for fees will be upgraded automatically to the next applicable Plan tier. For more details on what is included in each Plan tier, please visit www.Kigo.net/pricing/. Please note that Plan features may change from time to time.

40. INVOICING AND BILLING

Kigo shall bill Client the fees in the manner set forth in the Order Form. A late charge equal to the lesser of 1½% per month or the highest rate allowed by applicable law will be assessed on unpaid amounts over thirty (30) days past due.

41. PAYMENTS TO KIGO

Client shall be charged in accordance with the rates, schedule and policies associated with the Kigo System and any purchased VAS as set forth in the Order Form. Client acknowledges and agrees that any bank account, credit card and related billing payment information that Client provides to Kigo may be shared by Kigo with companies who work on Kigo’s behalf, such as payment processors, solely for the purposes of effecting payment to Kigo and servicing Client’s account. Kigo shall not be liable for any use or disclosure of such information by such third parties.

42. ADDITIONAL TERMS

For purposes of clarity, and without limitation, the Payment, Privacy, Modifications to Terms and Policies, Indemnification, Warranty, Limitation of Liability, Governing Law, and other provisions of the End User Terms constitute part of the Services Agreement between Client and Kigo.

43. RELEASE

Client, on behalf of itself and its Affiliates, hereby releases Kigo and its employees, agents, Affiliates and third-party service providers from any claim, loss, damage, expense or harm which arises from, relates to or is connected with Client’s use of the Kigo Services or any VAS. If Client is a resident of a state with a limitation on releases – such as California under California Civil Code 154 – Client hereby waives any statute or common law principle or similar effect in that state to the maximum extent allowed by law.

44. CONFIDENTIALITY AND PUBLICITY

Client shall not disclose the terms set forth in any Order Form to any person other than Client’s accountants and other professional advisors except as required by law.

45. TERM

The term of the Services Agreement will begin on the Effective Date set forth in the Order Form and will continue for the Initial Term set forth in the Order Form. Thereafter, the Services Agreement will automatically renew for successive terms with duration equal to the Initial Term indicated in the Order Form unless either party provides written notice of non-renewal. Either party may terminate the term of the Services Agreement with 30 days’ prior written notice to the other party. To be effective, any and all notices of termination submitted by Client must be emailed to cancellation@kigo.net. The 30-day notice period for termination shall not commence until Kigo has received Client’s notice of termination at cancellation@kigo.net. Upon termination of the Services Agreement, any amounts due to Kigo will be immediately due and payable. All rights and obligations of the parties (other than Client’s rights to access and receive the Kigo Services and any VAS’s and Kigo’s obligation to provide such Services) shall survive such termination.

VALUE-ADDED SERVICES

In addition to the above End-User Terms and Online Order Terms, these Value-Added Service (“VAS”) Terms will form part of the Terms of Service applicable to the purchase of the following VAS’s:

KIGO CONTACT CENTER

The following terms apply to the Kigo Contact Center Services:

1. Kigo Contact Center ServicesThe Kigo Contact Center Services will be provided in accordance with certain “Product Specifications.” The most current version of the Product Specifications may be found at www.kigo.net/contactcenter, the terms of which are incorporated herein by this reference. Kigo may change the Product Specifications or discontinue or revise any and all aspects of the Kigo Contact Center Services or any of the functionality of such services at its sole discretion from time to time during the term of the Services Agreement; provided however, Kigo shall not change the Product Specifications or discontinue the Kigo Contact Center Services or any of the functionality of such services in a manner that would modify or remove material functionality of such Services without prior written notice to Client, unless prior notice is not reasonably practicable in order to permit Kigo to comply with any laws or third-party licensing requirement. In the case of a conflict between these Terms of Service and the Product Specifications, the terms of the Product Specifications shall prevail.

2. Client Obligations. Client shall be responsible for testing and confirming the accuracy and functionality of all phone numbers and e-mail addresses assigned to Client by Kigo prior to using them in its listings. In addition, Client shall cooperate fully with Kigo and its agents and provide all assistance as reasonably necessary for Kigo to perform the Kigo Contact Center Services, including, without limitation, providing prompt access to Client’s personnel, equipment, systems and other information and resources reasonably required by Kigo to perform the Kigo Contact Center Services.

3.       Recording of Telephone Conversations.

(a)   Calls between Kigo and Prospective Renters. .  Kigo will disclose to all incoming callers that the call may be recorded. 

(b)   Calls between Client Employees and Prospective Renters or Other Parties.  The recording of telephone conversations is subject to regulation under certain state and federal laws. Depending upon applicable law, Client may be required to obtain consent from Client personnel in order to lawfully record incoming or outbound telephone calls at the Client’s offices. With respect to incoming and outbound telephone calls at Client’s offices, Client bears sole responsibility for procuring all required consents. Client should consult with its own legal counsel for all issues concerning the recording of telephone conversations. Client hereby agrees to notify any present and future employee whose duties include answering telephone calls that his/her conversations may be recorded and reviewed. Client represents to Kigo that it shall notify all affected employees that their phone calls may be recorded and, at Kigo’s request, shall either (1) provide to Kigo evidence of Client policies requiring that such employees be notified of the fact that certain conversations may be recorded; or (2) present to Kigo signed acknowledgements by its employees and agents that they are aware that certain conversations may be recorded. Client acknowledges that these representations and obligations are essential to the ability and a condition precedent to the obligation of Kigo to provide certain call recording services.

  

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