K2 Sourcing Terms of Use Agreement
Last Modified: November 4, 2013
PLEASE READ THIS K2 SOURCING TERMS OF USE AGREEMENT (THIS "AGREEMENT") CAREFULLY BEFORE USING THE K2 SOURCING CONTRACTS APPLICATION. BY CLICKING THE LOGIN BUTTON OR OTHERWISE USING THE K2 SOURCING CONTRACTS APPLICATION, THE INDIVIDUAL OR ENTITY LICENSING K2 SOURCING CONTRACTS APPLICATION ("END USER" "YOU" "CUSTOMER" OR "LICENSEE") IS AGREEING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT WITH K2 SOURCING. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE K2 SOURCING CONTRACTS APPLICATION, AND EXIT NOW.
IF YOU ARE AGREEING TO THIS AGREEMENT FOR USE BY AN ORGANIZATION, YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF THAT ORGANIZATION. YOU MUST HAVE THE AUTHORITY TO BIND THAT ORGANIZATION TO THIS AGREEMENT, OTHERWISE YOU MUST NOT SIGN UP FOR THE SERVICES.
PLEASE TAKE NOTE THAT IN THIS AGREEMENT, YOU ARE AGREEING THAT THE ORGANIZATION ADMINISTRATOR OR FOLDER OWNER AND K2 SOURCING MAY BE ABLE TO CONTROL ACCOUNT INFORMATION AND ACCESS TO YOUR K2 SOURCING ACCOUNT. ADMINISTRATORS AND K2 SOURCING MAY ALSO HAVE THE ABILITY TO MONITOR, RESTRICT, TERMINATE ACCESS TO AN ACCOUNT, ACCESS, DISCLOSE, RESTRICT, OR REMOVE INFORMATION IN OR FROM AN ACCOUNT.
K2 Sourcing Contracts Application is a product of K2 Sourcing, Inc. ("K2 Sourcing") based in Wisconsin. K2 Sourcing Contracts Application is a web-based portal that enables contract administrators to collaborate with team members and End Users to help manage the life cycle of contracts and related documents.
1. Customer Obligations.
1.1. Compliance. Customer will use the Services in compliance with the K2 Sourcing Terms of Service including the Acceptable Use Policy at the end of this document. Customer will obtain and maintain any consents from End Users to allow Administrators to engage in the activities described in this Agreement and to allow K2 Sourcing to provide the Services. Customer represents, and must ensure, that its End Users are governed by this Agreement, the K2 Sourcing Terms of Service, and consent to the K2 Sourcing Privacy Policy.
1.2. Customer Administration of the Services. Customer may specify End Users as "Administrators". Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrator use of the Services complies with this Agreement. K2 Sourcing's responsibilities do not extend to the internal management or administration of the Services for Customer.
1.3. Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of the Services. The Services are not intended for use by End Users under the age of 13. Customer will ensure that it does not allow any person under 13 to use the Services. Customer will promptly notify K2 Sourcing of any unauthorized use of, or access to, the Services.
1.4. Restricted Uses. Customer will not (i) sell, resell, or lease the Services or (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury. Customer, not K2 Sourcing, is responsible for any applicable vertical or industry-specific regulation compliance (e.g. HIPAA).
1.5. Third Party Requests.
1.5.1. "Third Party Request" means a request from a third party for records relating to an End User's use of the Services including information in or from an End User or Customer. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.
1.5.2. Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact K2 Sourcing only if it cannot obtain such information despite diligent efforts.
1.5.3. K2 Sourcing will make commercially reasonable efforts, to the extent allowed bylaw and by the terms of the Third Party Request, to: (A) promptly notify Customer of K2 Sourcing's receipt of a Third Party Request; (B) comply with Customer's commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then K2 Sourcing may, but will not be obligated to do so.
1.5.4. Communication Setting Management. Customer is responsible for maintaining all "opt-in/out" settings for communications from or via K2 Sourcing for all of Customer's End Users. Customer will use reasonable efforts to answer any requests from End Users regarding such settings.
2. Services.
2.1. Provision of Services. Customer may access and use the Services made available by K2 Sourcing under this Agreement.
2.2. Facilities and Data Transfer. K2 Sourcing will use commercially reasonable efforts to ensure that all facilities used to store and process Customer Data meet commercially reasonable security standards. By using the Services, Customer consents to transfer, processing, and storage of Customer Data. "Customer Data" means any data and content stored or transmitted via the Services by Customer or End Users.
2.3. Modifications to the Services. K2 Sourcing may update the Services from time to time. If K2 Sourcing changes the Services in a manner that materially reduces their functionality, K2 Sourcing will inform Customer, unless Customer has opted-out of communications of that type from K2 Sourcing.
2.4. Limitations on Use of Services. K2 Sourcing may impose reasonable limitations on bandwidth usage for the Services.
3. Support. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to use of the Services. Customer will use reasonable efforts to resolve support issues before escalating them to K2 Sourcing.
4. Suspension.
4.1. Of End User Accounts by K2 Sourcing. If an End User (i) violates this Agreement or the K2 Sourcing Terms of Service; (ii) uses the Services in a manner resulting in excessive support requests; or (iii) uses the Services in a manner that K2 Sourcing reasonably believes will cause it liability, then K2 Sourcing may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then K2 Sourcing may do so.
4.2. Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then K2 Sourcing may automatically suspend use of the Services. K2 Sourcing will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. "Security Emergency" means: (i) use of the Services that do or could disrupt the Services, other customers' use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third party access to the Services.
5. Intellectual Property Rights.
5.1. Reservation of Rights. THIS AGREEMENT DOES NOT GRANT K2 SOURCING ANY RIGHTS TO CUSTOMER'S OR END USERS' FILES OR THE INTELLECTUAL PROPERTY RIGHTS EMBODIED IN THOSE FILES EXCEPT FOR THE LIMITED RIGHTS EXPRESSLY SET FORTH IN THIS AGREEMENT THAT ARE NEEDED TO RUN THE SERVICES. This Agreement does not grant Customer or End Users (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the K2 Sourcing trademarks, logos, domain names, or other brand features. "Intellectual Property Rights" means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
5.2. Limited Permission. K2 Sourcing may need Customer permission to do things that Customer or End User ask K2 Sourcing to do with K2 Sourcing for example, hosting files, or sharing them at Customer or End User's direction. This includes product features visible to Customer or End User, for example, image thumbnails or document previews. It also includes design choices made to technically administer the Services, for example, how the Service backs up data to keep it safe. Customer grants K2 Sourcing the permissions K2 Sourcing needs to do those things solely to provide the Services and for K2 Sourcing to meet its obligations and exercise its rights under this Agreement. This permission also extends to third parties K2 Sourcing works with to provide the Services, for example Amazon, Rackspace (or other providers), which provides K2 Sourcing's storage space (again, only to provide the Services).
5.3. Suggestions. We appreciate it when users send us feedback, we may, at our discretion and for any purpose, use, modify, and incorporate into our products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send K2 Sourcing or post in K2 Sourcing's forums without any obligation to Customer or End Users.
5.4. Customer List. K2 Sourcing may include Customer's name in a list of K2 Sourcing customers on the K2 Sourcing website.
6. Third Party Services. If Customer uses any third-party service with the Services, (a) the service may access or use Customer's or End User's information; (b) K2 Sourcing will not be responsible for any act or omission of the third party, including the third party's use of Customer's or End User's information; and (c) K2 Sourcing does not warrant or support any service provided by the third party.
7.
Disclaimers. THE SERVICES ARE PROVIDED "AS IS." TO THE
FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT,
NEITHER K2 SOURCING NOR CUSTOMER MAKES ANY WARRANTY OF ANY KIND, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT. K2 SOURCING
MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION IN OR FROM AN END
USER OR CUSTOMER SERVICES ACCOUNT. K2 SOURCING DOES NOT WARRANT THAT THE
FUNCTIONS CONTAINED IN K2 SOURCING CONTRACTS APPLICATION WILL MEET CUSTOMERS
REQUIREMENTS, OR THAT THE OPERATION OF K2 SOURCING CONTRACTS APPLICATION WILL
BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN K2 SOURCING CONTRACTS
APPLICATION WILL BE CORRECTED. FURTHERMORE, K2 SOURCING DOES NOT WARRANT OR
MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF K2
SOURCING CONTRACTS APPLICATION IN TERMS OF THEIR CORRECTNESS, ACCURACY,
RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY K2
SOURCING OR A K2 SOURCING AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR
INDEMNITY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. THIS DISCLAIMER OF
WARRANTY AND INDEMNITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE
OF K2 SOURCING CONTRACTS APPLICATION IS AUTHORIZED HEREUNDER EXCEPT SUBJECT TO
THIS DISCLAIMER.
K2 Sourcing is not responsible for the
accuracy, completeness, appropriateness, or legality of files, user posts, or
any other information in or from an End User or Customer account. K2 Sourcing
has no responsibility or liability for the deletion or failure to store any
information in or from an End User or Customer Services account.
8. Fees & Payment.
8.1. Fees. Customer will pay, and authorizes K2 Sourcing to charge using Customer's selected payment method, for all applicable fees. If Customer enrolls in the annual billing plan, fees are refundable within the first 30 days of the Services. Otherwise, fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to K2 Sourcing. K2 Sourcing may suspend or terminate the Services if fees are 30 days past due.
8.2. Auto Renewals and Trials. IF CUSTOMER'S ACCOUNT IS SET TO AUTO RENEWAL, OR IS IN A TRIAL PERIOD, K2 SOURCING MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL, OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES K2 SOURCING THAT CUSTOMER WANTS TO CANCEL OR DISABLE AUTO RENEWAL. K2 Sourcing may revise Service rates by providing Customer at least 30 days notice prior to the next charge.
8.3. Taxes. Customer is responsible for all taxes. K2 Sourcing will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide K2 Sourcing with an official tax receipt or other appropriate documentation.
9. Term & Termination.
9.1. Term. This Agreement will remain in effect until Customer's subscription to the Services expires or terminates, or until the Agreement is terminated.
9.2. Termination for Breach. Either K2 Sourcing or Customer may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
9.3. Termination at Will. Customer may terminate this Agreement at any time by disabling Customer's Services account via the Services administrative console.
9.4. End User Termination. End Users may stop using the Services at any time. The K2 Sourcing Terms of Service will continue to apply.
9.5. Effects of Termination. If this Agreement terminates: (i) the rights granted by K2 Sourcing to Customer will cease immediately (except as set forth in this section); (ii) the rights granted by K2 Sourcing to End User will cease immediately; (iii) K2 Sourcing may provide Customer access to its account at then-current rates so that Customer may export its information; and (iv) after a commercially reasonable period of time, K2 Sourcing may delete any data relating to Customer's account. The following sections will survive expiration or termination of this Agreement: (Administrator Control), (Third Party Requests), (Intellectual Property Rights), (Disclaimers), (Fees & Payment), (End User Termination), (Effects of Termination), (Indemnification), (Limitation of Liability), and 13 (Miscellaneous).
10. Indemnification.
10.1. By Customer. Customer will indemnify, defend, and hold harmless K2 Sourcing from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim regarding: (i) Customer Data; (ii) Customer's use of the Services in violation of this Agreement or Acceptable Use Policy; or (iii) use of the Services by Customer's End Users (iv) the non-fulfillment of any agreement, covenant or obligation of Licensee under this Agreement.
10.2. By K2 Sourcing. K2 Sourcing will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a claim by a third party against Customer to the extent based on an allegation that K2 Sourcing's technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will K2 Sourcing have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by K2 Sourcing, and (ii) any content, information, or data provided by Customer, End Users or other third parties.
10.3. Possible Infringement. If K2 Sourcing believes the Services infringe or may be alleged to infringe a third party's Intellectual Property Rights, then K2 Sourcing may: (i) obtain the right for Customer, at K2 Sourcing's expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If K2 Sourcing does not believe the options described in this section are commercially reasonable then K2 Sourcing may suspend or terminate Customer's use of the impacted Services (with a pro- rata refund of pre-paid fees for the Services).
10.4. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE K2 SOURCING AND CUSTOMER'S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS.
11. Limitation of Liability.
11.1. Limitation on Amount of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL K2 SOURCING BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR RELATED TO THE USE OF K2 SOURCING CONTRACTS APPLICATION, REGARDLESS OF THE FORM OF ACTION, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE OR ANY OTHER LEGAL THEORY, EVEN IF K2 SOURCING HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF K2 SOURCING FOR DAMAGES ARISING OUT OF THIS AGREEMENT OR RELATED TO THE USE OF K2 SOURCING SERVICE OR CONTRACT APPLICATION, WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE OR ANY OTHER LEGAL THEORY, EXCEED THE AMOUNT OF FEES PAID TO K2 SOURCING BY LICENSEE AS A RESULT OF THE USE OF K2 SOURCING CONTRACTS APPLICATION.
12. Miscellaneous.
12.1. Terms Modification. K2 Sourcing may revise this Agreement from time to time and the most current version will be posted on the K2 Sourcing website. If a revision, in K2 Sourcing's sole discretion, is material, K2 Sourcing will notify you (for example to the email address associated with the applicable account). Other revisions may be posted to K2 Sourcing's blog or terms page, and you are responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may cancel the Services. If the revision is material and Customer cancels before the effective date of the revision, K2 Sourcing will refund a pro-rated amount of any fees Customer paid in advance for the Services for the unused portion of the term. If End User does not agree to the revised Agreement terms, End User must stop using the K2 Sourcing Contracts Portal. Customer may grant approvals, permissions, extensions and consents by email.
12.2. Entire Agreement. The Agreement, including Customer's invoice, the K2 Sourcing Terms of Service constitute the entire agreement between you and K2 Sourcing with respect to its subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the Agreement.
12.3. Governing Law. THE AGREEMENT AND SERVICES WILL BE GOVERNED BY WISCONSIN LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF OZAUKEE COUNTY, WISCONSIN, AND THE PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION THERE.
12.4. Severability. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect.
12.5. Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to you may also be sent to the applicable account email address, and are deemed given when sent. Notices to K2 Sourcing must be sent to K2 Sourcing, Inc., 222 East Main Street Suite 239, Port Washington, WI 53074 with a copy to the Legal Department.
12.6. Waiver. A waiver of any default is not a waiver of any subsequent default.
12.7. Assignment. Customer may not assign or transfer any part of this Agreement without the written consent of K2 Sourcing. K2 Sourcing may not assign this Agreement without providing notice to Customer, except K2 Sourcing may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
12.8. No Agency. K2 Sourcing and Customer are not legal partners or agents, but are independent contractors.
12.9. Force Majeure. Neither K2 Sourcing nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).
12.10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer's End Users are not third party beneficiaries to Customer's rights under this Agreement.
12.11. Export Restrictions. The export and re-export of data via the Services may be controlled by the United States Export Administration Regulations. The Services may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States and Customer must ensure that Administrators and End Users do not use the Services in violation of any export restriction or embargo by the United States. In addition, Customer must ensure that the Services are not provided to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
13. Acceptable Use Policy.
13.1. You agree not to misuse the K2 Sourcing services. For example, you must not, and must not attempt to, use the services to do the following things:
· probe, scan, or test the vulnerability of any system or network;
· breach or otherwise circumvent any security or authentication measures;
· access, tamper with, or use non-public areas of the Service, shared areas of the Service you have not been invited to, K2 Sourcing (or our service providers’) computer systems;
· interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
· plant malware or otherwise use the Services to distribute malware;
· access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”);
· send unsolicited communications, promotions or advertisements, or spam;
· send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
· publish anything that is fraudulent, misleading, or infringes another's rights;
· promote or advertise products or services other than your own without appropriate authorization;
· impersonate or misrepresent your affiliation with any person or entity;
· abuse K2 Sourcing referrals to get more credit for referrals than deserved;
· publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred;
· violate the law in any way, or to violate the privacy of others, or to defame others.