K2View Free Trial Agreement
Last Revised: February 2nd, 2022
THIS AGREEMENT GOVERNS THE USE OF CERTAIN TRIAL SERVICES (AS DEFINED BELOW) BY CUSTOMER. BY CLICKING ON THE ACCEPTANCE BOX OR ACCESSING OR USING THE TRIAL SERVICES, CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL SUCH ACCESS AND USE IS SUBJECT TO THIS AGREEMENT. ANY SUCH ACCESS OR USE WILL CONSTITUTE SUCH ACCEPTANCE AND RESULT IN A BINDING AND LEGALLY ENFORCEABLE AGREEMENT BETWEEN CUSTOMER AND K2VIEW. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A CORPORATION, PARTNERSHIP, ASSOCIATION OR OTHER ENTITY OR GROUP, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ENTITY OR GROUP TO THIS AGREEMENT.
Table of Content
1 Definitions
2 The Solution; Trial Services and Restrictions
3 Customer Responsibilities
4 Term; Termination; Disclaimers, Limitation of Liability
5 Intellectual Property Rights; Confidentiality
6 General
1. Definitions
1.1 “Agreement” means collectively all the terms, conditions contained or referenced in this document and all other operating rules, notices, policies and procedures that K2View may publish from time to time.
1.2 “Authorized User” means, anyone authorized by Customer, its employees or whom Customer has supplied an access to the Trial Services.
1.1 “Content” means information, data, media or other content provided by Customer for use with the Trial Services.
1.2 “Customer” means the individual person, company, or organization that has registered for the Trial Services and any Authorized User.
1.3 “K2View” means K2View LLC.
2. The Solution; Trial Services and Restrictions
2.1 The Solution. K2View is the owner of a proprietary software-as-a-solution/ service (SaaS) technology known as “FABRIC” (together with its associated features, tools, components, and any changes, enhancements, extensions, adaptations, additions, improvements and applications thereof now existing and hereafter devised, the “Solution”).
2.2 Access. K2View will make certain functionality of the Solution (the “Trial Services”) available to Customer for evaluation purposes only on a trial basis free of charge solely during the Trial Term (as defined below). Subject to applicable law, K2View reserves the right to withdraw, terminate or to modify a free trial at any time without prior notice and with no liability.
2.3 Restrictions. The right to use the Trial Services during the Trial Term granted hereunder are contingent upon Customer’s compliance with this Agreement. Customer shall not directly or indirectly: (i) make any Trial Services available to anyone other than Customer or its Authorized Users; (ii) use the Trial Services for any production purpose; (iii) offer, use, or otherwise exploit the Trial Services, whether or not for a fee, in any managed service provider offering; platform as a service (PaaS) offering; service bureau; or other similar product or offering; (iv) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or any software, documentation or data related to the Trial Services; (v) modify or make derivative works based upon the Trial Services; (vi) copy or create Internet “links” to the Services or “frame” or “mirror” any of the Trial Services; (vii) permit direct or indirect access to or use of any Trial Services or data contained therein in a way that circumvents any usage limits and restrictions as set forth in this Agreement; (viii) use the Trial Services if Customer is a competitor of K2View; or (ix) access the Trial Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Trial Services, or (c) copy any ideas, features, functions or graphics of the Trial Services.
2.4 General. Customer’s registration for, or use of, the Trial Services shall be deemed to be Customer’s agreement to abide by this Agreement, including any materials available on K2View’s website that are incorporated by reference herein, including registration and set up processes and K2View’s privacy and security policies. Customer shall be directly responsible for any violations of this Agreement by any party that it allows to access the Trial Services. K2View shall not be obligated to provide support services for the Trial Services but may elect to provide assistance and Trial Services updates in its sole discretion.
3. Customer Responsibilities
3.1 Third Party Provider. Customer acknowledges that the Trial Services are hosted by one or more third-party providers. K2View may remove, update or change a third-party provider at any time.
3.2 Privacy Compliance. Customer shall not use the Trial Services to store or process any sensitive Information and shall use reasonable efforts to restrict the inclusion of other EEA/Swiss/UK/ personal information (as defined under EU/Swiss/UK relevant law) or any information, data, media or other content provided by Customer that may be governed by industry specific legislation (the “Content”). K2View is neither the Data Controller nor the Data Processor (as defined under relevant EU/Swiss law) of any personal data inputted by Customer. If Customer chooses to input personal data, Customer shall remain solely liable and responsible for complying with applicable privacy laws with respect to Customer’s use of the Trial Services, including but not limited to EU General Data Protection Regulation and any other privacy/data protection obligations in relation to the processing of such personal data (including but not limited to the obligations to delete data, process it lawfully, and restrictions regarding transfer outside of the EEA/Switzerland/UK, and responding to data subject access requests). All personal data used by or within the Trial Services may be stored on servers located outside of the EEA/Switzerland/UK. Further, Customer is not permitted to store, maintain, process or transmit sensitive personal information, including but not limited to financial information, country identifications numbers (such as social insurance, social security, driver’s license or passport numbers) or Protected Health Information (as defined under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)) in the Trial Services.
3.3 Responsibility for Content. Customer acknowledges and agrees that (i) Customer has sole responsibility to determine which Authorized Users gain access to the Trial Services and which Content such Authorized Users may access via the Trial Services; (ii) K2View has no obligation to monitor any Content used in connection with the Trial Services; (iii) K2View is not responsible for the accuracy, completeness, appropriateness, copyright compliance or legality of any Content accessible using the Trial Services, and (iv) Customer is solely responsible for the uploading and/or deletion of any Content placed into the Trial Services by any Authorized User. Customer is solely responsible for the development, content, operation, maintenance, and use of Content including but not limited to responsibility for any claims relating to the Content uploaded by Authorized User, including claimed violations of applicable law.
ANY DATA ENTERED INTO THE TRIAL SERVICES BY OR FOR YOU DURING THE TRIAL TERM WILL BE PERMANENTLY ERASED AND LOST EVERY SEVERAL HOURS OR AS SHALL BE DETERMINED BY K2VIEW.
3.4 Use. Customer hereby represents and warrants that (a) it has all of the rights in the Content necessary for the uploading, use, display, publishing, sharing and distribution of the Content in the course of using the Trial Services; and (b) the storage, display, publication, performance, integration, use and transmission of Content through the Trial Services does not violate any law or this Agreement. Customer must promptly notify K2View in writing of any unauthorized use of all or any portion of the Trial Services. Customer’s login credentials are not permitted to be shared among any third parties. In the event of any such unauthorized use by any third party that obtained access through Customer, Customer will immediately notify K2View and take all steps necessary to terminate such unauthorized use. Customer will provide K2View with such cooperation and assistance related to any such unauthorized use as K2View may reasonably request. Customer acknowledges that in order to protect transmission of Content to the Trial Services, it is Customer’s responsibility to use a secure encrypted connection to communicate with the Trial Services.
4. Term; Termination; Disclaimers, Limitation of Liability
4.1 The term of this Agreement will commence on the date this Agreement becomes binding on Customer and shall terminate automatically without notice after thirty (30) days, unless otherwise terminated sooner pursuant to the terms hereof (collectively, the “Trial Term”). Notwithstanding the foregoing, either party may terminate this Agreement, at any time, in its sole discretion. Upon the expiration of the Trial Term, if Customer desires to continue using the Solution, Customer shall be required to execute K2View’s master license agreement.
4.2 Upon any termination or expiration of this Agreement, Customer’s right to access and use the Trial Services shall automatically cease, and all content will be deleted. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
4.3 THE TRIAL SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY. K2VIEW SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE K2VIEW’S LIABILITY WITH RESPECT TO THE TRIAL SERVICES SHALL NOT EXCEED $1,000. WITHOUT LIMITING THE FOREGOING, K2VIEW AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT CUSTOMER’S USE OF THE TRIAL SERVICES DURING THE TERM OF THE TRIAL WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO K2VIEW AND ITS AFFILIATES FOR (A) ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE TRIAL SERVICES DURING THE TRIAL TERM, AND/OR (B) ANY BREACH BY CUSTOMER OF THIS AGREEMENT.
5. Intellectual Property Rights; Confidentiality
5.1 Proprietary Rights. K2View (and its licensors, as applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Trial Services (or any underlying technology or content within the Trial Services). Further, Customer’s license to use and access the Trial Services will be automatically revoked if Customer violates this Agreement in any manner. No title or ownership of any proprietary rights related to the Trial Services is transferred to Customer pursuant to this Agreement. All intellectual property rights not explicitly granted to Customer are expressly reserved by K2View. If Customer provides comments, suggestions, or recommendations to K2View with respect to the Trial Services (including without limitation with respect to modifications, enhancements, improvements, other changes to the Trial Services) (collectively, the “Feedback”), Customer hereby grants to K2View a worldwide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Solution and Trial Services.
5.2 Confidentiality. Customer agrees to hold in confidence Confidential Information until Customer receives written notice from K2View that the Confidential Information ceases to be confidential. Customer further agrees that Customer shall not use Confidential Information except to the extent necessary to exercise the license granted to Customer by K2View hereunder. Customer will protect Confidential Information from unauthorized distribution and use with the same degree of care that Customer uses to protect its own like information, but in no event less than a reasonable degree of care. Customer acknowledges and agrees that, due to the unique nature of the Confidential Information, there can be no adequate remedy at law for breach of this Section 4 and that such breach would cause irreparable harm to K2View; therefore, K2View will be entitled to seek immediate injunctive relief, in addition to any remedies otherwise available at law or under this Agreement. For purposes of this Agreement, “Confidential Information“ means any confidential or proprietary information which relates to K2View’s trade secrets, software, source code for the Software, the Documentation, services, deliverables, training materials, technology, research, development, pricing, product plans, marketing plans, business information, proprietary materials including visual expressions, screen formats, report formats, design features, ideas, methods, algorithms, formulae, and concepts used in the design and all future modifications and enhancements. Confidential Information shall also include third party data or information that was disclosed to Customer under a duty of confidentiality. Confidential Information also includes any information, in whatever form, disclosed or made available by K2View to Customer that relates to or is contained within K2View Confidential Information and that is not publicly known. Confidential Information does not include information that: (i) enters the public domain through no fault of Customer; (ii) is communicated to Customer by a third party under no obligation of confidentiality; (iii) has been independently developed by Customer without reference to any Confidential Information; (iv) was in Customer’s lawful possession prior to disclosure and had not been obtained either directly or indirectly from K2View; A disclosure by Customer of Confidential Information as required by law, and to such extent necessary, shall not be considered a breach of this Agreement, provided that Customer has promptly notified K2View in writing of such requirement, unless restricted by law, and allowed K2View a reasonable time to oppose such requirement.
6. General
6.1 Entire Agreement; Severability; No Wavier; Headings. This Agreement is the entire agreement between Customer and K2View with respect to the Solution and/or the Trial Services and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between K2View and Customer with respect to the Trial Services, including any prior version of this Agreement. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Failure to enforce any part of this Agreement shall not constitute a waiver of any right to later enforce that or any other part of this Agreement. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation.
6.2 Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the laws of the State of Texas; and any suit, action or proceeding arising out of or relating to this Agreement (including any non-contractual dispute or claim) will be settled by the State and Federal Courts situated in Dallas, TX.
6.3 Modification. K2View reserves the right, in its sole discretion, to modify any provision of this Agreement, or to change or update the Trial Services. Customer’s continued use of the Trial Services following notification of any such changes constitutes acceptance of those changes.
6.4 Statistical Information. K2View may collect and use certain statistical and usage information relating to the Trial Services and may share such information with authorized third-party vendors to perform functions on K2View’s behalf. This information may include, but is not limited to, size and number of applications, sharing statistics, login statistics, session information (e.g., number, duration, error messages, types/number of users, applications and/or charts used and API usage) and browser configurations. This information will not include any confidential or personally identifiable information of Customer or any Authorized User.
6.5 Force Majeure. K2View shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond K2View’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.
6.6 Export Control. Customer agrees at all times to comply with all applicable laws and regulations in its performance of this Agreement, which may include, without limitation, U.S. and E.U. export control laws and regulations, and regulations declared by the U.S. Department of the Treasury Office of Foreign Assets Control, the Council of the E.U. and their counterparts under applicable law (“Export Control Laws”). Customer will indemnify, defend and hold harmless K2View and its respective officers, agents and employees from and against any and all losses, costs, claims, penalties, fines, suits, judgments and other liabilities (including applicable attorney’s fees) arising out of, relating to or resulting from Customer’s failure to comply with any Export Control Laws.
6.7 Assignment; Relationship between the Parties. This Agreement is not assignable, transferable or sublicensable by Customer except with K2View’s prior written consent. K2View may assign, transfer or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, fiduciary, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.
6.8 Notices. All notices concerning a default, breach or violation of this Agreement by K2View must be in writing and delivered to K2View: (a) by certified or registered mail; or (b) by an internationally recognized express courier and shall be addressed to: K2View at Legal@k2view.com, Attention: Legal Department. All other notices to K2View, including account related communications, will be electronically sent to K2View at ftsupport@k2view.com.
