Terms of Service

THE FOLLOWING TERMS AND CONDITIONS [hereinafter the “TERMS OF SERVICE”] WILL BE LEGALLY BINDING ON CUSTOMER UPON EXECUTION OF THE K4CONNECT, INC. [hereinafter, “K4Connect”] MASTER SERVICES AGREEMENT [the “MSA”]. CUSTOMER SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE MSA.

1. Definitions

“Agreement” means the Master Services Agreement [the “MSA, along with these K4Community Terms of Service [the “Terms of Service”]. These Terms of Service shall be construed as being incorporated by reference within the MSA.

 

Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of such party.

 

“Associated Agreement(s)” means the Agreement entered into by and between the Customer and Client, wherein the Client grants the Customer the authority to include the Client within K4Community by enabling the Client’s access to K4Community.

 

Authorized Individual(s)means any individual who is considered part of a Client’s LifeCircle© and who is granted permission by the Client, enabled by the Customer, to interface with the Client Data through the use of the K4Community Family App.

 

Authorized Individual Datameans all electronic data or information submitted to and/or stored in K4Community by or on behalf of an Authorized Individual (not otherwise Customer Data, Client Data or K4Connect Data), including, but not limited to, data that is entered into K4Community by a User.

 

“Client” means a Resident of a Community, or their legal representative, who enters into an Associated Agreement with a Customer wherein the Customer is granted authority to include the Client within the K4Community by enabling the Client’s access to K4Community.

 

Client Data” means all electronic data or information submitted to and/or stored in K4Community by or on behalf of a Client, including, but not limited to, Client-specific data (not otherwise Customer Data, Authorized Individual Data or K4Connect Date) that is captured by Product(s) designed to monitor a Client’s activity.

 

Confidential Information” means: [a] Customer Data, Client Data, Authorized Individual Data and K4Connect Data; and,[b] the terms of the Agreement; and, [c] any commercial, financial, marketing, business, technical or other data, security measures and procedures, know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with the Agreement, which: [i] in the case of information in tangible form, is marked “confidential” or “proprietary;” [ii] in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten [10] days following disclosure; [iii] under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary; and, [iv] will include any reproduction of such information in any form or medium, or any part of such information. The following shall not be deemed Confidential Information: [v] information that was in the public domain at the time of its disclosure, or which becomes available within the public domain through no fault of the receiving party; [vi] information that was rightfully in the receiving party’s possession without restriction prior to disclosure; [vii] information that was rightfully disclosed to the receiving party by a third party without restriction; [viii] information that was independently developed by employees and/or contractors of the receiving party who did not have access to and without use of or reference to the disclosing party’s Confidential Information; and, [d] unless previously agreed-upon for use by K4Connect and the disclosing party, aggregate data collected or generated by or on behalf of K4Connect regarding any K4Connect product and/or service, including, but not limited to the K4Community Products and Services [for purposes of providing or improving K4Connect products and services, benchmarking K4Connect Platform performance, preparing statistics and system metrics, marketing and other purposes] that does not contain any personally identifiable or Customer-specific information.

 

“Community” means a residential setting where individuals, oftentimes seniors and/or individuals with disabilities, reside within a Unit with ready access to varying levels of care and support depending upon individualized needs.

 

Customer” means the counterparty that enters into any Agreement with K4Connect.

 

Customer Data” means all electronic data or information submitted to and/or stored within K4Community by or on behalf of Users, data (not otherwise deemed to be Client Data, Authorized Individual Data or K4Connect Data) input into K4Community by a Client or Product, data input into K4Community through an individual’s use of any Third-Party Application, or data that is submitted to and/or stored within K4Community by any means not otherwise expressly set forth herein.

 

Device(s)” means the number of interconnected Products that are to be installed in each Apartment.

 

Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or in part, electronically received, and/or transmitted through any of the Service(s).

 

Estimate/Order Form” means a K4Connect estimate, quote, renewal notification, order form or Statement of Work (hereinafter, singularly a “SoW” or plurally the “SoWs”) in the name of, and executed by or on behalf of, a Customer or its Affiliate, and accepted by K4Connect upon execution by a duly-authorized representative, which specifies the Service(s), Professional Service(s) and/or Product(s) to be provided by K4Connect subject to the terms of the Agreement.

 

“Goods” means “all things that are moveable” in accordance with the Uniform Commercial Code [“UCC”] Article 2. The Product(s) shall be considered Goods, and the title to all Products passes to the Customer when the Products are tendered to a third-party on behalf of the Customer, including, but not limited to, when the Products are tendered to a carrier or courier, when the Products are delivered to the Customer’s Community, or in a situation involving any Product(s) ordered specifically for a Customer, when K4Connect is legally bound to pay for the Product(s).

 

Help Documentation” means the online help center documentation describing the feature of the Service(s) and/or Product(s), including User Guides, which may be updated from time to time.

 

“K4Community©refers to Software-as-a-Service (“SaaS”) hosted by K4Connect, and associated Services and Products related thereto, intended for the purpose of enhancing the living experiences of Clients residing in a Community, enabling Authorized Individuals to stay connected to Clients, and enabling the Customers to gain insight into the living experiences of the Clients residing in a Community.

 

“K4Community Family Appmeans the K4Community application authored by K4Connect which is available on various computer operating systems, including, but not limited to, the iOS and Android mobile operating systems, and which interoperates with the Services to enable Authorized Individuals to remain connected to the Client and to view the Client’s Data

 

“K4Connect-App.com” means the K4Connect online directory of applications that interoperate with the K4Community Service(s).

 

“K4Connect Platform®means all of the K4Connect SaaS systems and Product(s), including, but not limited to, K4Community, K4Life, and K4Home, authored by K4Connect, which are available on various computer operating systems, including, but not limited to, the iOS and Android mobile operating systems, and which interoperates with the Service(s) to enable Authorized Individuals to remain connected to the Client and to view the Client’s Data.

 

“K4Connect Data” means all electronic data or information submitted to and/or stored within K4Community by or on behalf of K4Connect, data (not otherwise deemed to be Customer Data, Client Data or Authorized Individual Data) input into K4Community by any party, data input into K4Community through an individual’s use of any Third-Party Application, data that is made available to Customer at any time through any medium, and data that is submitted to and/or stored within K4Community by any means not otherwise expressly set forth herein.

 

“LifeCircle©means the family and friends of the Client designated as contacts in K4Community.

 

“Master Services Agreement,” “MSA” or “K4Community MSA” means the Agreement between K4Connect, the Customer and any affiliates, an exemplar of which can be obtained upon request from K4Connect. The MSA, when combined with the K4Community Terms of Service, forms the foundation for the contractual relationship between the parties as it pertains to K4Community.

 

Product(s)” means any tangible item that exists in space and which can be perceived with a sense of touch, such as a Device, which is connected to K4Community either through a hard-wired or wireless connectivity interface, provided to the Customer for the benefit of the Customer or Client pursuant to the terms set forth in the Agreement.

 

Professional Service(s)” means the general consulting, implementation, installation, training, and/or support services to be provided to Customer pursuant to an Estimate/Order Form, which may be included with, and incorporated by reference within the Agreement.

 

“Resident(s)” means an individual living in a Unit located within the Community, whether on a temporary, long-term or permanent basis.

 

Service(s)” means K4Connect’s online integrated application suite [which for the purposes of this K4Community Terms of Service is K4Community, which forms a part of the “K4Connect Platform”], provided to Customer for the joint benefit of the Client and Authorized Individuals pursuant to the terms set forth in the Agreement. In addition, Service(s) shall include any software modules, support, features or offline components associated with K4Community as described within the applicable User Guides that are made available to Customer by K4Connect, but Service(s) shall exclude Third Party Applications, Professional Services and Products.

Subscription” means the purchase method associated with SaaS, whereby the software forming the basis of K4Community is hosted on computers owner or controlled by K4Connect, and the Customer’s usage of K4Community is limited to a defined and specific period of time. Contrast a Subscription purchase method to a perpetual purchase method wherein a Customer is granted the right to use the software for an indefinite period of time.

 

Subscription License” means the limited license granted to the Customer to use K4Community during the Term.

 

Subscription Pricing” means the per Unit price which the Customer will pay to K4Connect for K4Community during the Term.

 

Tenancy—Multi-Tenancy” refers to the mode of operation and system architecture of SaaS software where the Customer’s use of K4Community is within a shared computing environment, with the Customer Data and access being logically separated from other customers.

 

Tenancy—Single Tenancy” refers to the mode of operation and system architecture of SaaS software where the Customer’s use of K4Community is within a physically-segregated computing environment, with the Customer Data and access being physically separated from other customers.

 

Term” means the period of time during which the Customer has a contractual right to access and enable K4Community for the benefit of the Clients residing in the Community.

 

Third Party Applications” means applications, integrations, services, or implementation, customization and other consulting services related thereto, provided by a party other than K4Connect, as further described in Section 2.06 [“Third Party Applications”], which are expressly approved by K4Connect in writing to interoperate with the Service(s).

 

Unit” means a residential dwelling, occupied by a Client, within which the Product(s) and Devices are installed. A Unit can be, but is not limited to being, a single room, apartment, cottage or house.

 

Users” means individuals who are authorized by Customer to access K4Community for the purpose of enabling Client or Authorized Individual access to K4Community, or individuals who are authorized to use other K4Community functionality for the joint benefit of the Customer, Client or Authorized Individuals. Users may include, but are not limited to, Customer’s Affiliates, employees, consultants, contractors and agents, as well as the employees, consultants, contractors and agents of the Customer’s Affiliates.

 

User Guides” mean the online English language user guides for the Services and Products, accessible via login at http://www.K4Connect.com [under “Help”], as updated from time to time. Customer acknowledges that it has had the opportunity to review the User Guides.

 

URL Terms” means the terms with which the Customer and Users must comply, which are located at the URL addresses referenced in these Terms of Services and in the Agreement, all of which are hereby incorporated by this reference.

 

2.0 | Terms of Service. Customer acknowledges and agrees to these Terms of Service, which together with the terms of the Agreement shall govern Customer’s access and use of the Service(s) and Product(s), as well as any use of the Service(s) and Product(s) by the Users, Clients and Authorized Individuals. Capitalized terms not otherwise defined in these Terms of Service shall have the meaning given within the Agreement, with any conflicts between these Terms of Service, the MSA, and SLA, being controlled primarily by the language contained first within these Terms of Service, and secondarily, by the language contained within the applicable Agreement.

 

2.01 | Accuracy of Customer’s Contact Information. Customer shall provide accurate, current and complete information on Customer’s legal business name, address, email address, and phone number, and maintain and promptly update this information if it should change.

 

2.02 | User Names: Passwords, Access and Notification. Customer shall authorize access to all Users, Clients and Authorized Individuals. Login rights for a designated User cannot be shared or used by more than one unique individual. Client logins and Authorized Individual logins are for designated unique Clients and designated unique Authorized Individuals only, and cannot be shared, used or re-assigned to another individual under any condition. Customer will be responsible for the confidentiality of user names and passwords of all Users, Clients and Authorized Individuals that may come into the custody or control of the Customer. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data and Client Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service(s) or within a Customer’s account. K4Connect will act as though any Electronic Communications it receives under Customer’s passwords, user name, and/or account number will have been sent by Customer or User. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Service(s) and shall promptly notify K4Connect of any unauthorized access or use of the Service and any loss or theft or unauthorized use of any User’s password or name and/or the account numbers associated with the Service(s).

 

      2.03 | Network Specifications. The Customer represents and acknowledges for the benefit of K4Connect that the Customer shall use its best efforts to establish adequate internet bandwidth, signal strength, device discovery/communication protocols and security environment profiles to the minimum standards designated by K4Connect as set forth upon the “Network Specifications” document published by K4Connect. The Network Specifications are dynamic in nature and are continually updated based upon numerous variables, including, but not limited to: (i) advancements in the technological capabilities of the Product(s) and Service(s); (ii) updates to the Product(s) and Service(s) based upon security or functionality issues that are routinely discovered within the underlying system architecture, firmware and software, or communication networks utilized by the Product(s) and Service(s); and, (iii) local, state and federal regulatory requirements which impact the Product(s) and Service(s). Given the dynamic and fluid nature of the Network Specifications, the Customer agrees to be bound by all updates, modifications and changes made to the Network Specifications at the sole discretion of K4Connect. Failure by the Customer to achieve the minimum standards set forth within the Network Specifications shall void all warranties and remedies, express or implied, without condition, that the Customer may seek to pursue against K4Connect related to the Product(s) and Service(s).

 

      2.04 | Client Authorization within the Associated Agreement(s). The Customer represents and acknowledges for the benefit of K4Connect that the Customer shall use its best efforts to: (i) modify any Associated Agreement to the extent necessary in order to ensure that Client and Authorized Individuals acknowledge and consent to these Terms of Service; (ii) obtain and retain the necessary authorization and consent of the Client evidencing that the Client’s use of K4Community is enabled in a manner that satisfies the Customer’s duties as set forth within these Terms of Service; and, (iii) to provide adequate privacy notices to the Client on a continuing basis to ensure compliance with all applicable local, state and federal laws. To assist the Customer with its duties and responsibilities under Section 2.04(i), K4Connect can provide a model notice as set forth upon the “K4Community Acknowledgment & Consent Notice.” Use of the K4Community Acknowledgment & Consent Notice by the Customer will ensure compliance with applicable portions of Section 6.0.

 

      2.05 | General Restrictions

 

[a] General. Customer is responsible for all activities conducted under its User logins and for its Users’ compliance with the terms of any Agreement entered into by and between the Customer and K4Connect. Customer’s use of the K4Connect Platform, Product(s) and Service(s) shall not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the K4Connect, Product(s) or Service(s). Customer shall not itself, nor shall the Customer permit any party to: [a] copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service(s) and Product(s) or any part thereof, or otherwise attempt to discover any source code or modify the Service(s) or Product(s) in any manner or form unless expressly allowed in the Help Documentation; [b] access or use the Service(s) or Product(s) to circumvent or exceed account limitations or requirements of the Service(s) or Product(s); [c] use the Service(s) or Product(s) for the purpose of building a similar or competitive product or service, [d] obtain unauthorized access to the Service(s) or Product(s) [including without limitation permitting access to or use of the Service(s) or Product(s) via another system or tool, the primary effect of which is to enable input of requests, transactions or instructions by means other than by authorized Users or by means other than Third-Party Applications or products approved for the input of requests, transactions or instructions expressly permitted for such use by K4Connect in writing]; [e] use the Service(s) or Product(s) in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; [f] publish, post, upload or otherwise transmit Customer Data that contains any viruses, trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or [g] use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service(s) or Product(s). Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Service(s) and Product(s), including without limitation, those related to privacy, electronic communications and anti-spam legislation. Customer is responsible for ensuring that its use of the Service(s) to store or process credit card data, if any, complies with applicable Payment Card Industry Data Security Standards [“PCI DSS”] requirements and shall not store credit card and social security data in the Service(s) except in the designated encrypted fields for such data. Customer shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service(s) and Product(s), obtaining any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, [i] Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, [ii] Customer shall not permit Users to access or use the Service(s) or Product(s) in violation of any U.S. export embargo, prohibition or restriction, and [iii] Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Customer(s) will not send any Electronic Communication from the Service(s) that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by the Agreement, no part of the Service(s) or Product(s) may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Customer agrees not to access the Service(s) or Product(s) by any means other than through the interfaces that are provided by K4Connect. Customer shall not do any “mirroring” or “framing” of any part of the Service(s), or create Internet links to the Service(s) which include log-in information, user names or passwords, and/or secure cookies. Customer will not in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by K4Connect. Customer shall ensure that all access and use of the Service(s) and Product(s) by Users and Clients is in accordance with these Terms of Service and the applicable Agreement. Any action or breach by any User shall be deemed an action or breach by Customer.

 

[b] HIPAA. Customer agrees that: [i] K4Connect is not acting on Customer’s behalf as a Business Associate or subcontractor; [ii] the Service(s) and Product(s) may not be used to store, maintain, process or transmit protected health information [“PHI”]; and, [iii] though K4Connect may voluntarily choose to comply with some or all of the requirements of HIPAA, the Service(s) and Product(s) will not be used in any manner that would require K4Connect, the Service(s) or the Product(s) to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented [“HIPAA”]. In the preceding sentence, the terms “Business Associate,” “subcontractor,” “protected” health information” or “PHI” shall have the meanings described in HIPAA.

 

2.06 | Third Party Applications.   K4Connect may offer certain Third Party Applications for sale pursuant to the Services(s) or Products(s) listed upon an Estimate/Order Forms. Any procurement of such Third Party Applications by Customer shall be subject to any additional terms specified in such Estimate/Order Forms.

 

Further, K4Connect or third party providers may offer Third Party Applications for use directly within K4Community in conjunction with the Service(s) or otherwise related to Customers’ use of the Service(s) or Product(s). Except as expressly set forth in the Estimate/Order Form, K4Connect does not warrant any such Third Party Applications, regardless of whether or not such Third Party Applications are provided by a third party that is a member of a K4Connect partner program or otherwise designated by K4Connect as “Built For K4Connect©,” “certified,” “approved,” “recommended” or any other term or phrase that may be perceived in a manner that might be considered an affirmative representation that a Third Party Application is suited for a particular purpose. Any procurement by Customer of such Third Party Applications or services is solely between Customer and the applicable third party provider. Customer may not use Third Party Applications to enter and/or submit transactions to be processed and/or stored in the Service(s), unless Customer has procured the applicable subscription to the Service(s) for such use and access.

 

K4Connect is not responsible for any aspect of such Third Party Applications that Customer may procure or connect to through the Service(s) or Product(s), or any descriptions, promises or other information related to the foregoing. If Customer installs or enables Third Party Applications for use with the Service(s) or Product(s), Customer agrees that K4Connect may enable such third party providers to access Customer Data as required for the interoperation of such Third Party Applications with the Service(s) or Product(s), and any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider pursuant to a separate privacy policy or other terms governing Customer’s access to or use of the Third Party Applications. K4Connect shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Applications or third party providers. No procurement of such Third Party Applications is required to use the Service(s) or Product(s). If Customer was referred to K4Connect by a member of one of K4Connect’s partner programs, Customer hereby authorizes K4Connect to provide such member or its successor entity with access to K4Connect’s business information related to the procurement and use of the Service(s) or Product(s) pursuant to any Agreement, including but not limited to, access to User names, email addresses, support cases and billing/payment information.

 

2.05 | Transmission of Data. Customer understands that the technical processing and transmission of Customer’s Electronic Communications may be fundamentally necessary to use of the Service(s) and Product(s). Customer is responsible for securing DSL, cable or another high speed Internet connection and up-to-date “browser” software in order to utilize the Service(s) and Product(s) in the manner intended by K4Connect as per the Network Specifications. Customer expressly consents to K4Connect’s interception and storage of Electronic Communications, Customer Data and/or Client Data, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by K4Connect. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. K4Connect is not responsible for any Electronic Communications, Customer Data, Client Data and/or Authorized Individual Data which may be delayed, lost, altered, intercepted or stored during the transmission thereof across networks not owned and/or operated by K4Connect, including, but not limited to, the Internet and Customer’s local area network.

 

2.06 | Service Level. During the Term, the Product(s) and Service(s) will meet the service level specified in the “Service Level Agreement” [hereinafter, “SLA”], a copy of which can be found on the K4Connect website located at www.K4Connect.com/legal/sla , which is incorporated herein by this reference. If the Product(s) and Service(s) fail to achieve the service level specified within the SLA, then Customer will be entitled, as its sole and exclusive remedy, to a credit for the Service(s) in accordance with the terms set forth in the SLA. The system logs and other records maintained by K4Connect for the Product(s) and Service(s), if any, shall be used for calculating any service level incidents.

 

2.07 | K4Connect Professional Services. As part of the Customer’s use of the Service(s) and Product(s), K4Connect will provide Customer with Help Documentation and other online resources to assist Customer. K4Connect may offer optional “for fee” Professional Services, which may include, but are not limited to, general consulting, installation, implementation, training, and/or support services.

 

2.08 | Security. K4Connect shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data and Client Data. During the Term, K4Connect shall maintain PCI DSS compliance for the portions of the K4Connect Service(s) that store and process credit card data, if any. Any changes made to the Service(s) by the Customer or at the Customer’s direction may affect the Customer’s compliance with PCI DSS requirements and Customer shall be solely responsible for ensuring that any such changes are compliant with PCI DSS requirements.

 

2.09 | Confidentiality. Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind [at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information] not to use or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under any Agreement or as directed by Customer. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers who have executed binding written agreements requiring confidentiality and non-use obligations at least as restrictive as those in this Section. Additionally, if applicable, Customer must input credit card information and social security numbers only in the fields designated for such data in the Service(s). In the event that the Customer inputs credit card information and social security numbers only in the fields designed for such data in the Service(s), the Customer agrees and acknowledges that any representations by K4Connect about the confidentiality or security of this data are rendered null and void. Nothing in these Terms of Service or within any Agreement will prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or regulation, order of a court or other governmental authority or regulation, or at the discretion of K4Connect, upon advice of K4Connect’s legal counsel.

 

2.10 | Ownership of Customer Data. As between K4Connect and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer, however, Customer acknowledges that K4Connect shall have the right to retain, use and transfer, for statistical and analytical purposes, system testing and other commercially-reasonable purposes, any portion of the Customer Data which K4Connection converts to an “anonymized” state. For the purposes of any Agreement, in order to qualify as anonymized data, the Customer Data must have all personally identifiable information removed from all data sets. In the context of medical data, anonymized data refers to data from which a specific and unique individual cannot be identified by the recipient of the information, and at a minimum, will require that the name and complete address be removed, together with any other information which, in conjunction with other data held by or disclosed to the recipient, could identify the individual, including, but not limited to, any Customer-specific protocol identifiers which might be used to identify refer to a specific individual.

 

2.11 | Ownership of Client Data. As between K4Connect and Client, all title and intellectual property rights in and to the Client Data is owned exclusively by Client, however, the Customer will have the Client sign a Client Acknowledgment and Consent Notice [or similar consent] at the time that the Customer and Client enter into the Associated Agreement(s), wherein the Client will acknowledge that K4Connect shall have the right to retain, use and transfer, for statistical and analytical purposes, system testing and other commercially-reasonable purposes, any portion of the Client Data which K4Connection converts to an “anonymized” state. For the purposes of any Agreement, in order to qualify as anonymized data, the Client Data must have all personally identifiable information removed from all data sets. In the context of medical data, anonymized data refers to data from which a specific and unique individual cannot be identified by the recipient of the information, and at a minimum, will require that the name and complete address be removed, together with any other information which, in conjunction with other data held by or disclosed to the recipient, could identify the individual.

 

2.12 | K4Connect Intellectual Property Rights. All rights, title and interest in and to the Service(s) [including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Service(s) or Product(s) provided or developed by K4Connect] are owned exclusively by K4Connect or its licensors. Except as provided in any Agreement, the rights granted to Customer do not convey any rights in the Service(s) or Product(s), express or implied, or ownership in the Service(s) or Product(s), or any intellectual property rights thereto, not specifically set forth in a writing signed by an authorized representative of K4Connect. Customer grants K4Connect a royalty-free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service(s) or Product(s) [without attribution of any kind] any suggestions, enhancement request, recommendations, proposals, corrections or other feedback or information provided by Customer or any Users related to the operation or functionality of the Service(s) or Product(s). Any rights in the Service(s), Product(s) or K4Connect’s intellectual property not expressly granted herein by K4Connect are reserved by K4Connect. K4Connect service marks, logos and product and service names are marks of K4Connect or its affiliates [hereinafter, the “K4Connect Marks”]. Customer agrees not to display or use the K4Connect Marks in any manner without K4Connect’s express prior written permission. The trademarks, logos and service marks of Third Party Application providers [“Third Party Marks”] are the property of such third parties. Customer is not permitted to use the Third Party Marks without the prior written consent of such third party which may own the Mark.

 

      2.13 | Dispute Resolution.

 

[a] The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. Except as provided in 2.13[b], each party agrees that before it seeks mediation, arbitration, or any other form of legal relief, it shall provide written notice to the other of the specific issues in dispute [and referencing the specific portions of any contract between the parties and which are allegedly being breached]. Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting [in person or by video- or tele-conference] for the purpose of attempting in good faith to resolve the dispute. Except as provided in 2.13[b], any and all disputes, claims or controversies arising out of or relating to the Terms of Service or any Agreement shall be submitted to JAMS [formerly known as the “Judicial Arbitration and Mediation Services, Inc.”] for mediation before arbitration or any other form of legal relief may be instituted. Mediation may be commenced by a party providing JAMS a written request for mediation setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS in selecting a single mediator and scheduling a mediation, which should take place within forty-five (45) days following a request for mediation. The mediator shall be a retired judge who has had experience with technology disputes. The parties agree that they will participate in the mediation in good faith and share equally in its costs. The mediation shall take place either in Raleigh, North Carolina, or at a forum located in Wake County, North Carolina.

 

[b] The dispute resolution procedures in these Terms of Service shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.

 

3.0 | Warranties

 

3.01 | Warranty of Service(s). K4Connect warrants that: [i] the Service(s) will achieve in all material respects the functionality described in the User Guides applicable to the Service(s) procured by Customer, and [ii] such functionality of the Service(s) will not be materially decreased during the then-current subscription Term. Customer’s sole and exclusive remedy for K4Connect’s breach of this warranty shall be that K4Connect shall be required to use commercially-reasonable efforts to modify the Service(s) to achieve in all material respects the functionality described in the User Guides and if K4Connect is unable to restore such functionality within a commercially-reasonable period of time, Customer shall be entitled to terminate the Agreement in writing provided to K4Connect, and thereafter, receive a pro-rata refund of the subscription fees paid under the Agreement for its use of the Service(s) for the terminated portion of the then-current subscription Term. K4Connect shall have no obligation with respect to a warranty claim unless notified of such claim within sixty [60] days of the first instance of any material functionality problem, and such notice must be sent to clientpayments@k4connect.com. The warranties set forth in this Section are made to and for the benefit of Customer only. Such warranties shall only apply if the applicable Service(s) have been utilized in accordance with the User Guides, any Agreement and all applicable state and federal law(s).

 

3.02 | Warranty of Product(s). K4Connect disclaims all warranties related to the Product(s), whether express or implied, and the Customer and any other party seeking any remedy of any nature whatsoever as it pertains to the Product(s) shall rely solely on the warranties, if any, granted by the manufacturer, vendor or provider from whom K4Connect procured the Product(s) and which are eligible to be passed through to the Customer.

 

3.03 | Warranty of No Malicious Code. Each party warrants that it will not introduce viruses, trojan horses, worms, spyware, or other such malicious code [“Malicious Code”] into the Service(s) or Product(s).

 

4.0 | Disclaimer of Warranties. EXCEPT AS STATED IN SECTION 3.01, 3.02 and 3.03 ABOVE, K4CONNECT DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE(S) OR PRODUCT(S) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE(S) OR PRODUCT(S) WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE(S), PRODUCT(S) AND/OR DOCUMENTATION RELATED THERETO, WILL BE CORRECT OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE(S) AVAILABLE [INCLUDING BUT NOT LIMITED TO, THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT] WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY K4CONNECT. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.08, 3.01, 3.02 and 3.03 ABOVE, THE SERVICE(S) AND PRODUCT(S) ARE PROVIDED TO CUSTOMER ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND ARE FOR COMMERCIAL USE ONLY. K4CONNECT EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE SERVICE(S) OR PRODUCTS WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING WITHOUT LIMITATION, HIPAA OR THE GRAMM-LEACH-BLILEY ACT OF 1999. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE(S) AND PRODUCT(S), OR THE INFORMATION GENERATED THEREBY OR THROUGH THE USE THEREOF, IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

 

5.0 | Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANY THIRD PARTY FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH THESE TERMS OF SERVICE OR ANY AGREEMENT [WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES]. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH.

 

THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH ANY AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SERVICE(S) OR PRODUCT(S), WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, SHALL BE, AS IT PERTAINS TO THE SSA, NO GREATER THAN AN AMOUNT EQUAL TO THE EQUIVALENT OF TWELVE [12] MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT, AS IT PERTAINS TO THE PPA, NO GREATER THAN THE WHOLESALE VALUE OF THE PRODUCT(S), OR AS IT PERTAINS TO THE MSA OR PSA, NO GREATER THAN AN AMOUNT EQUAL TO FIFTY PERCENT [50%] OF THE CONTRACT VALUE OF THE MSA [INCLUDING THE VALUE OF ANY ASSOCIATED SoW], AND/OR [50%] OF THE CONTRACT VALUE OF THE PSA. IN THE EVENT OF A BREACH OF SECTION 2.09 [CONFIDENTIALITY] OF THESE TERMS OF SERVICE, SUCH MAXIMUM LIABILITY OF EITHER PARTY SHALL BE AN AMOUNT EQUAL TO TWO [2] TIMES THE EQUIVALENT OF 12 MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT. NOTWITHSTANDING THE PREVIOUS SENTENCE, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY’S FAILURE TO COMPLY WITH THE TERMS OF SERVICE OR WITH THE TERS OF ANY AGREEMENT.

 

BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN ANY AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO ANY AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY. THE LIMITATIONS OF LIABILITY SET FORTH IN THE SECOND PARAGRAPH OF THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 6.0 BELOW.

 

6.0 | Indemnification.

 

6.01 | K4Connect Indemnification of Customer. Subject to the terms and conditions set forth in this Section 6.0, K4Connect shall, at its own expense, defend Customer from and against any and all allegations, threats, claims, suits, and proceedings brought by third parties [collectively an “Infringement Claim”] alleging that the Service(s) or Product(s), as used in accordance with the Terms of Service and any Agreement, infringes such third party’s copyrights or trademarks, or misappropriates such third party’s trade secrets and shall indemnify Customer from and against liability, damages, and costs finally awarded or entered into in settlement [including, without limitation, reasonable attorneys’ fees, all of which shall be referred to hereinafter collectively as the “Losses”] to the extent based upon an Infringement Claim.

 

The preceding language notwithstanding, K4Connect will have no liability for an Infringement Claim arising from: [a] use of the Service(s) or Product(s) in violation of the Terms of Service, any Agreement or any applicable state or federal law(s); [b] use of the Service(s) or Product(s) after K4Connect notifies Customer to discontinue use because of an Infringement Claim; [c] modifications to the Service(s) or Product(s): (i) not made by K4Connect; or, (ii) made without the written consent of K4Connect; or, (iii) made by K4Connect based on Customer specifications or requirements, or the specifications or requirements of the manufacturer of the Product(s); or, [d] use of the Service(s) or Product(s) in combination with any non-K4Connect software, application or service; or, [e] services offered by Customer or where Customer has charged any type of fee for such services.

 

If an Infringement Claim as set forth above is brought or threatened, K4connect shall, at its sole option and expense, use commercially-reasonable efforts either: [f] to procure a license that will protect Customer against such Infringement Claim without cost to Customer; [g] to modify or replace all or portions of the Service(s) as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or, [h] if [f] and [g] are not commercially feasible, terminate any Agreement and refund to the Customer a pro-rata refund of the fees paid by Customer any Agreement for the terminated portion of the Term or for Professional Services not yet completed; however, to the extent that the Product(s) remain in place with the Customer in a manner functioning similar to other like products not intended for use with the K4Connect Platform, no refund shall be made. The rights and remedies granted Customer under this Section 6.01 state K4Connect’s entire liability, and Customer’s exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a third party.

 

6.02 | Customer Indemnification of K4Connect. Subject to the terms and conditions set forth in this Section 6.0, Customer shall, at its own expense, defend K4Connect from and against any and all claims [the “K4Connect Claims”]: [a] alleging that the Customer Data or any trademarks or service marks, or any use thereof, infringes the copyright or trademark or misappropriates the trade secrets of a third party, or has caused harm to a third party; or, [b] arising out of Customer’s breach of Section 2.04 [Client Authorization within the Additional Agreement(s)] or Section 2.05 [General Restrictions] above and shall indemnify K4Connect from and against liability for any Losses to the extent based upon such K4Connect Claims; or, [iii] arising from any claim made by any User, Client, Authorized Individual or any other third-party based upon an act or omission of the Company or its Affiliates.

 

6.03 | Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section 6, the indemnified party shall: [i] promptly notify the indemnifying party in writing of such Claim; [ii] allow the indemnifying party to have sole control of its defense and settlement; and, [iii] upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section 6.0 are expressly conditioned upon the indemnified party’s compliance with this Section 6.03 except that failure to notify the indemnifying party of such Claim shall not relieve that party of its obligations under this Section 6.0 but such Claim shall be reduced to the extent of any damages attributable to such failure to notify. The indemnification obligations contained in this Section 6.0 shall survive termination of any Agreement for twelve (12) full calendar months, starting on the first day of the calendar month subsequent to termination of the Agreement.

 

7.0 | Suspension/Termination.

 

7.01 | Suspension for Delinquent Account. K4Connect reserves the right to suspend the Customer’s, Affiliates’ and User’s access to, and/or use of, the Service(s) and/or Product(s), or any right to receive Professional Service(s), if any payment is due but unpaid, and at least thirty [30] days have passed since the transmission of notice of delinquency to the Customer. The issuance of a statement or invoice showing a past due balance, or any other means of communicating a delinquency to the Customer, shall be sufficient notice hereunder. Customer agrees that K4Connect shall not be liable to Customer, to any Customer Affiliate, to any User, to any Authorized User or to any other third party for any suspension of the Service(s) or any functionality of the Product(s) pursuant to this Section.

 

7.02 | Suspension for Ongoing Harm. K4Connect may with reasonably contemporaneous telephonic or email notice to Customer, suspend access to the Service(s) or functionality of the Product(s), if K4Connect reasonably concludes that Customer’s use of the Service(s) or Product(s) is contributing to denial of service attacks, spamming, or illegal activity, and/or Customer’s use of the Service(s) or Product(s) is causing immediate, material and ongoing harm to K4Connect or others. In the extraordinary event that K4Connect suspends access to the Service(s) or functionality of the Product(s), K4Connect will use commercially-reasonable efforts to limit the suspension to the offending portion of the Service(s) or Product(s), while working with Customer to resolve the issues causing the suspension of Service(s) or the functionality of Product(s). Customer agrees that K4Connect shall not be liable to Customer, Affiliates, Users nor to any third party for any suspension of the Service(s) or the functionality of Product(s) under such circumstances as described in this Section, including, but not limited to, liabilities that may arise due to the terms of the SLA.

 

7.03 | Termination for Cause, Expiration. Either party may immediately terminate this Agreement and all Estimates/Order Forms issued hereunder, in the event the other party commits a material breach of any provision of any Agreement not otherwise cured within thirty [30] days of written notice from the non-breaching party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and shall be sent to the alleged breaching party at the address listed in the Agreement [or such other address that may be provided pursuant to the Agreement [hereinafter, “Notice”]. Upon termination or expiration of any Agreement, neither the Customer, Affiliates nor Users shall have any rights to continue use of the Service(s) or Product(s). If any Agreement is terminated by Customer for any reason other than a termination expressly permitted by the Agreement, then K4Connect shall be entitled to all of the fees due under the Agreement for the entire Term, for all of the Products and for the entire scope of the Professional Services contemplated therein, irrespective of whether or not the Term has expired, irrespective of whether or not the Product(s) have been fully-installed, and irrespective of whether or not the Professional Services have been completed. If any Agreement is terminated as a result of K4Connect’s breach of the Agreement, then Customer shall be entitled to a refund of the pro-rata portion of any fees paid by Customer to K4Connect under the Agreement for the portion of the Term remaining after the termination, for any of the Products not installed, or for the portion of the Professional Services which have not been completed as of the effective date of the termination.

 

7.04 | Handling of Customer Data Upon Termination/Expiration. Following expiration or termination of any Agreement, K4Connect may immediately deactivate the applicable Customer and User account[s], and shall be entitled to delete such Customer or User account[s] from K4Connect’s “live” site following a thirty [30] day waiting period. Customer further agrees that K4Connect shall not be liable to Customer nor to any third party for any termination of Customer or User access to the Service(s) or deletion of Customer Data, provided that K4Connect is in compliance with the terms of this Section 7.04 and with the terms of Section 2.01.

 

8.0 | Modifications; Discontinuation of the Service(s) or support of the Product(s).

 

8.01 | Modifications to the Service(s) or functionality of the Product(s). K4Connect may, from time to time, make modifications to the Service(s), to particular components of the Service(s), or to the functionality of the Product(s), and will use commercially-reasonable efforts to notify Customer of any material modifications and the schedule related thereto. K4Connect shall not be liable to the Customer, Affiliate, User or to any third party for any modification of the Service(s) or to the functionality of the Product(s) as described in this Section 8.01.

 

8.02 Discontinuation of any of the Service(s). K4Connect reserves the right to discontinue offering any of the Service(s) at the conclusion of Customer’s then-current subscription Term for the Service(s). K4Connect shall not be liable to Customer nor to any third party for any discontinuation of the Service(s) as described in this Section 8.2.

 

8.03 Discontinuation of support of the Product(s). K4Connect reserves the right to discontinue offering support for the Product(s) at any time upon the conclusion of Customer’s then-current Term for Professional Service(s). K4Connect shall not be liable to Customer nor to any third party for any discontinuation of the Professional Service(s) as described in this Section 8.03.

 

8.04 To Applicable Terms. If K4Connect makes a material change to any applicable URL Terms, then K4Connect will attempt to notify Customer by either sending an email to the notification email address or posting a notice to the administrator in Customer’s account. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify K4Connect via an email sent to legal@k4connect.com within ten (10) days after receiving notice of the change. If Customer notifies K4Connect as required, then Customer will remain governed by the URL Terms in effect immediately prior to the change until the end of the then-current Term for the affected Service(s) or Professional Service(s). If the affected Service(s) or Professional Service(s) are renewed, even if the renewal is automatic in nature, the renewal will be renewed under K4Connect’s then-current URL Terms.

 

 

 

 

 

 

 

 

END OF THE K4COMMUNITY TERMS OF SERVICE