You have elected to subscribe to the platform and related services offered by either Kryptos Logic, LLC or a subsidiary of Kryptos Logic, LLC (such platform and services, collectively, the “Kryptos Logic Services”) made available at http://www.kryptoslogic.com (or any successor URL controlled by Kryptos Logic, LLC) (the “Kryptos Logic Website”).
Depending on your selection at the time of subscription, all references hereinafter to “Selected Services” shall refer to the specific Kryptos Logic Services provided by either Kryptos Logic, LLC or a subsidiary of Kryptos Logic LLC. All references hereinafter to “Kryptos Logic” shall refer solely to the specific provider of the Selected Services, be it Kryptos Logic, LLC or a Kryptos Logic, LLC subsidiary.
These terms of service (“Terms of Service” or “Agreement”) govern the provision to you (if you are accepting these Terms of Service in your individual capacity) or the company of which you are a duly authorized employee or agent (“Customer”) of the Selected Services, and Customer’s usage of the same. By using the Selected Services, Customer agrees to be bound by these Terms of Service to the exclusion of all other terms. If Customer does not unconditionally agree to all the terms and conditions of this Agreement, then Customer should not use (and has no right to use) the Selected Services or the Kryptos Logic Website. Kryptos Logic may update these Terms of Service from time to time and will notify Customer of such updates either via email or by posting such changes on the Kryptos Logic Website, or other reasonable means. Customer’s continued use of the Selected Services following notification of an updated version of the Terms of Service shall constitute Customer’s consent thereto. Kryptos Logic may make modifications to the Selected Services in its discretion, provided that such modifications do not materially adversely affect the features or functionality of the Selected Services. This Agreement applies solely to the Selected Services and no other.
1. Selected Services. Kryptos Logic shall use commercially reasonable efforts to provide the Selected Services. The Selected Services may incorporate or link to components or services provided by one or more third parties (such services, “Third Party Services”, and such providers, “Third Party Service Providers”). Customer agrees that its use of those Third-Party Services may be subject to terms and conditions and policies (including any amendments or modifications to those terms and conditions and policies) that are specific to such Third-Party Services, and that it shall be bound by such terms and conditions and policies.
(a) Fees. Customer shall pay Kryptos Logic’s then current pricing for the Selected Services. Such fees shall accrue based on Customer’s usage of the Selected Services. Kryptos Logic shall automatically bill Customer based on Customer’s usage of the Selected Services during each month and shall send a sales receipt to Customer for such Selected Services via email. Unless otherwise set forth in a Service Order Form, all payments from Customer to Kryptos Logic in connection with this Agreement must be made in United States dollars.
(b) Late Payment; Collections. Kryptos Logic may charge Customer a late fee on any amount that is not paid when due equal to the lesser of 1.5% per month or the maximum rate permitted by law, plus all reasonable expenses and costs of collection (including collection agency fees, attorney fees and court costs). Without limiting the foregoing, Kryptos Logic may without liability immediately suspend any or all Selected Services, or immediately terminate this Agreement at any time and for any reason.
(c) Termination. Without limiting any other remedy available to Kryptos Logic, if this Agreement expires or terminates for any reason, Customer shall pay all unpaid fees for Selected Services related to periods up to and including the date of expiration or termination.
(d) Taxes. Prices do not include any sales, use, value-added, excise, personal property, customs fees, import duties, stamp duties, withholding, or any other similar tax, fee or assessment, including penalties and interest, imposed by any United States federal, state, provincial or local government entity, or any non-US government entity on any of the Selected Services under this Agreement (“Taxes”). Customer shall be liable for and shall pay all Taxes and related charges, however designated, imposed on the provision of the Selected Services (excluding taxes based solely on Kryptos Logic’s net income) regardless of whether Kryptos Logic fails to collect the tax at the time the Selected Services are provided. When Kryptos Logic has the legal obligation to pay or collect such Taxes, the appropriate amount shall be paid by Customer, and Customer acknowledges and consents to Kryptos Logic automatically charging Customer’s credit card for such amount, unless Customer provides Kryptos Logic with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall provide to Kryptos Logic original or certified copies of all Tax payments or other evidence of payment of Taxes by Customer with respect to transactions or payments under this Agreement.
3. Restrictions; Compliance with Laws and Other Matters.
(a) Prohibited Behavior. Customer shall not, and shall not permit any users of the Selected Services or any other party to, engage in, solicit, or promote any activity that is illegal, violates the rights of others, or could subject Kryptos Logic to liability to third parties.
(b) Security. Customer shall take all reasonable security precautions in connection with its use of the Selected Services. Customer shall protect the confidentiality of all usernames, passwords, and other information it uses to access the Selected Services and shall change its passwords periodically.
(c) Compliance with Laws. Customer shall comply with all laws applicable to the use and operation of the Selected Services. Kryptos Logic reserves the right to suspend or terminate Customer’s accounts at any time and for any reason in Kryptos Logic’s sole discretion.
(d) Cooperation with Investigations and Legal Proceedings. Kryptos Logic may, without notice to Customer: (i) report to the appropriate authorities any conduct by Customer that Kryptos Logic believes violates applicable criminal law; and (ii) provide any information that it has about Customer in response to a request from a law enforcement or government agency, or in response to a request in a civil action that on its face meets the requirements for such a request.
4. Suspension of Selected Services. Kryptos Logic may suspend the provision of Selected Services to Customer or remove any data or content transmitted via the Selected Services without notice to Customer and without liability at any time.
6. Customer Warranties. Customer represents and warrants to Kryptos Logic that (i) the information Customer has provided for the purpose of establishing an account with Kryptos Logic is complete and accurate, and (ii) it has the requisite power and authority to enter into this Agreement and to perform all its obligations hereunder. Customer shall update its account information to maintain the accuracy of such information during the term of this Agreement.
7. Indemnification. Customer shall indemnify and hold harmless Kryptos Logic from and against any and all claims, demands, liabilities, losses, damages, penalties, fines and expenses (including reasonable attorneys’ fees and expenses) arising out of or related to any of the following: (i) actual or alleged use of the Selected Services in violation of this Agreement or applicable law by Customer (including any actual or alleged infringement or misappropriation of third party intellectual property rights arising from Customer’s use of the data or other content created by the use of the Selected Services ; (ii) any dispute between Customer and its customers, contractors or others; (iii) the operation or use of the Selected Services or any data or content contained therein or transmitted thereby; or (iv) any violation by Customer, its customers, contractors or others, of any terms, conditions, agreements or policies of any Third Party Service Provider. Customer shall not settle any claim under this Section 7 without the prior written consent of Kryptos Logic.
8. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL SELECTED SERVICES ARE PROVIDED “AS IS” AND KRYPTOS LOGIC, LLC (FOR ITSELF, AND ALL OF KRYPTOS LOGIC’S SUBSIDIARIES, AFFILIATES, SUPPLIERS AND LICENSORS) DISCLAIMS ANY AND ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NEITHER KRYPTOS LOGIC (NOR ANY OF ITS PARENT, SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS WARRANTS OR REPRESENTS THAT THE SELECTED SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY.
9. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL KRYPTOS LOGIC OR ANY OF ITS SUBSIDIARIES, AFFILIATES, OR ANY OF THEIR EMPLOYEES, OFFICERS, AGENTS, LICENSORS OR SUPPLIERS, BE LIABLE UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) FOR:
I. PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (HOWEVER CAUSED AND UNDER ANY THEORY OF LAW INCLUDING BREACH OF CONTRACT, STATUTE, TORT, STRICT LIABILITY, AND INFRINGEMENT), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR
II. ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES ACTUALLY RECEIVED BY KRYPTOS LOGIC FROM CUSTOMER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF AN EVENT GIVING RISE TO A CLAIM. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
CUSTOMER ACKNOWLEDGES THAT EACH OF THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THIS AGREEMENT AND THAT ABSENT SUCH LIMITATIONS KRYPTOS LOGIC WOULD NOT PROVIDE THE SELECTED SERVICES TO CUSTOMER OR ENTER INTO THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT THE SELECTED SERVICES DO NOT INCLUDE DATA BACKUP OR DATA STORAGE SERVICES, AND CUSTOMER HEREBY RELEASES KRYPTOS LOGIC AND ITS CONTRACTORS FROM ANY LIABILITY FOR LOSS OF DATA.
(a) Customer. Customer may terminate this Agreement by providing advance written notice to Kryptos Logic and shall pay all amounts due for Selected Services through the effective date of termination.
(b) Kryptos Logic. Kryptos Logic may terminate this Agreement without liability at any time and for any reason.
(c) Effect of Termination. Notwithstanding the foregoing, Customer acknowledges and agrees that Kryptos Logic may, in its sole discretion and without obligation, delete all data or content in Kryptos Logic’s possession or control, including but not limited to “Customer Data” as defined in Section 11(a) hereinbelow, after thirty (30) days following any termination or expiration of this Agreement for any reason, without liability to Customer. Sections 2, 7, 8, 9, 10, 12, 13, and 14 will survive any expiration or termination of this Agreement.
11. Use of Data; EU Data Subjects; Security.
(a) Customer Data. Kryptos Logic may use, process, transfer and disclose information or data of Customer that is provided by Customer as part of the Selected Services (collectively, “Customer Data”) only to the extent necessary to provide the Selected Services or as otherwise may be permitted under applicable law; provided that Kryptos Logic may also disclose Customer Data (i) to third parties in connection with the provision of Selected Services (provided such third parties are under a duty to use, process, transfer and disclose such Customer Data only as necessary to provide the Selected Services), and (ii) in response to requests from law enforcement officials, government agencies, or as required in connection with legal proceedings. Customer Data does not include “Direct Customer Information” (as defined below).
(c) EU Data Subjects. If Kryptos Logic receives any Customer Data constituting “personal data” as defined in the EU Data Protection Directive 95/46/EC (as may be amended from time to time) from Customer in connection with the Selected Services, then Customer agrees that: (i) Customer is the data controller with respect to such Customer Data; and (ii) Customer will comply with all applicable laws, including the EU Data Protection Directive, applicable to such Customer Data, including obtaining all necessary consents from relevant EU Data Subjects and taking actions necessary to enable the Data Subjects to exercise their rights of notice, disclosure, access, accountability and other rights under the relevant data protection law. Kryptos Logic will act as the data processor of such Customer Data and in that capacity will use commercially reasonable efforts to assist Customer in enabling it to comply with the applicable data protection law. Customer acknowledges that Kryptos Logic utilizes servers located in the United States, and consents to the transfer of Customer Data to the United States. Customer further acknowledges and agrees that any data or information stored by Customer on such servers is subject to the laws of the United States, including copyright, privacy and defamation laws.
(d) Data Security. Kryptos Logic will use commercially reasonable efforts to prevent the unauthorized access, use or disclosure of Customer Data and Direct Customer Information located on Kryptos Logic servers, including the implementation of industry-standard measures designed to maintain the security of such data. Customer acknowledges, however, that Kryptos Logic cannot guarantee the security of such data given the nature of the Internet.
12. Third Party Services and Separate Products.
(a) Third Party Terms; Disclaimer. Certain components of the Selected Services are comprised of Third Party Services, and Kryptos Logic may perform its obligations hereunder through Third Party Providers of such Third-Party Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY, KRYPTOS LOGIC MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THIRD PARTY SERVICES AND, AS BETWEEN CUSTOMER AND KRYPTOS LOGIC, SUCH THIRD-PARTY SERVICES AND SEPARATE PRODUCTS AND RELATED SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, KRYPTOS LOGIC SHALL HAVE NO LIABILITY FOR LOSS, DESTRUCTION, ALTERATION OR UNAUTHORIZED ACCESS TO DATA OR OTHER CONTENT STORED OR TRANSMITTED USING THIRD PARTY SERVICES OR SEPARATE PRODUCTS.
13. Notices and Communications.
(a) Notices. All Customer notices to Kryptos Logic under this Agreement (including notices required to be in writing) may be sent to Kryptos Logic via e-mail through Customer’s Kryptos Logic online support account. Kryptos Logic notices to Customer under this Agreement shall be given (i) via email to the individual designated as Customer’s “Customer Contact” when signing up for the Selected Services online through the Kryptos Logic Website, (ii) as specified in these Terms and Conditions, or (iii) by other means reasonable under the circumstances. Notices are deemed received on the day delivered, or if that day is not a Business Day, as of the beginning of the first Business Day following the day delivered.
(b) Communications with Customer. Kryptos Logic shall communicate with Customer regarding day-to-day operational issues using email, the Kryptos Logic Website, and the product user interface, as relevant.
(c) Customer Responsibilities. Customer shall be responsible for (i) ensuring that Customer email addresses used in communicating with Kryptos Logic are kept current and that spam and other filters for such email accounts are configured to accept emails from Kryptos Logic, and (ii) routinely checking the Kryptos Logic Website and product user interface for additional information relevant to Customer’s use of the Selected Services.
(a) Ownership; Licenses; Customer Data. As between the parties, Kryptos Logic owns and shall retain all rights in the Selected Services (including all related infrastructure), Kryptos Logic’s trademarks and service marks, and all modifications to any of the foregoing and all related intellectual property rights. Customer grants Kryptos Logic (and its subcontractors) during the term of this Agreement a non-exclusive, worldwide, royalty-free, sublicensable, license to use, reproduce, modify, publicly perform, publicly display and distribute Customer Data for purposes of providing the Selected Services hereunder. In addition, Kryptos Logic shall have the right, but not the obligation, to retain copies of Customer Data for legal compliance purposes.
(b) Governing Law, Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of California, USA, excluding its conflicts of law rules. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Except for disputes involving the assertion of Kryptos Logic’s intellectual property rights and claims for injunctive relief, any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by binding arbitration in Los Angeles County, California, using the English language, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, LLC ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. Such arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Arbitration Rules and Procedures. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Los Angeles County, California. Use of the Selected Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this Section.
(c) Non-Waiver. A party’s failure or delay in enforcing any provision of this Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of this Agreement. A party’s waiver of any of its rights under this Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
(d) Construction. The headings in this Agreement are not part of this Agreement but are solely for the convenience of the parties. As used herein, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather, will be deemed to be followed by the words “without limitation.” All references in this Agreement to “Sections” refer to sections herein.
(e) Force Majeure. Neither party shall be in default of any obligation under this Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
(f) No Third-Party Beneficiaries. Except with respect to Sections 8 and 9 as they apply to Kryptos Logic’s subsidiaries, affiliates, and Kryptos Logic’s and its subsidiaries’ and affiliates’ respective employees, officers, agents, licensors and suppliers, there are no third-party beneficiaries to this Agreement.
(g) Severability. In the event any term of this Agreement is held unenforceable, the remaining portion of this Agreement will remain in full force and effect.
(h) Marketing. Customer grants Kryptos Logic the right during the term of this Agreement to use Customer’s name, mark and logo on the Kryptos Logic Website and in Kryptos Logic’s promotional materials solely to identify Customer as a customer of Kryptos Logic, in accordance with any usage guidelines delivered by Customer to Kryptos Logic.
(i) Relationship Between the Parties. The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other, and neither party may represent to any person that it has the power to bind the other on any agreement. This Agreement is non-exclusive. Kryptos Logic may provide the Selected Services to any person, including a competitor of Customer.
(j) Assignment. Neither party may assign this Agreement to a third party without the written consent of the other party, provided that Kryptos Logic may upon written notice assign this Agreement to an affiliate or to a successor in interest upon any merger, acquisition, change of control, reorganization or sale of all or substantially all its stock or its assets that are related to this Agreement. An attempted assignment in contravention of the terms and conditions hereof shall be null and void.
(k) Agreement. This Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any other agreement, understanding or communication, written or oral regarding such subject matter.