Support Center

Terms of Use

Last Updated: Jul 15, 2015 12:19PM MDT

TERMS OF USE—INTRODUCTION

By using the Kimono Services you agree that these Terms of Use legally bind your organization and everyone in it including you. You should make sure that someone in authority at your organization has approved, but using the Kimono Services binds you to these terms regardless.

TERMS OF USE—PLAIN ENGLISH

This section is a short summary of the Terms of Use to help your understanding. The actual legal words that apply are in the “TERMS OF USE—LEGAL FORM” section below.

WE PROMISE THAT:

  • We'll let you use the Kimono Services and all features that you have paid for or otherwise acquired
  • You’re always the owner of the data you upload, and we won’t share it with other people or organizations. Ever. (But you can share it.)
  • If we give you a written promise outside of these Terms of Use, we’ll honor it
  • We’ll update the web site if the Terms of Use change, but we’ll also try to notify you directly if we change prices
  • We’ll provide our standard support at no additional charge, and/or enhanced support if it is available and you have paid for it
  • We'll make reasonable best efforts to back up your data and keep the Services running all the time except for minimal scheduled maintenance
  • We understand why your data needs to be secured (especially student records), and we'll work to protect against hacking and other problems. (Read our Privacy Policy for details.)
  • We give you our Warranty that the Services do what we say they’ll do

YOU PROMISE THAT:

  • You’re actually authorized to use the Services
  • You understand that this is a company, web site, and set of Services located in the United States of America, and your relationship to Kimono is governed by USA law regardless of where you’re located or your citizenship
  • You’ll keep your passwords and other security information safe and private
  • You won’t copy Kimono’s work. You also won’t use Kimono’s name, logo or other content to confuse others about what Kimono has built.
  • It’d be hard to lose money or property using our Services, but if you do, we don’t have to pay you back anything more than the fees you’ve paid us
  • If you get sued for something Kimono did wrong, we’ll back you; if we get sued because you did something wrong, you’ll back us
  • If you get into an argument with us, you and we will go to mediation before going to court, using Utah laws and rules. Any court action will also apply Utah law.
  • If you suggest an idea to us, it becomes our property as well as yours (we’ll probably thank you, but we don’t have to thank you or pay you for the idea)
  • You can cancel your account at any time and for any reason; so can we, but if we cancel it we have to refund the balance and give you 30 days notice to find an alternative (unless we’re canceling because you broke the law)
  • You'll read and comply with some other standard legalese we put at the end

TERMS OF USE—LEGAL FORM

If there is any conflict between the language in this "Terms of Use—Legal Form" section and the other sections of this document, the language in this "Terms of Use—Legal Form" section will control.

  • The words “you” and “your” mean yourself, your organization, all its affiliates and subsidiaries (for example, a school district includes all of its schools), and all people employed by or associated with them.
  • The words “Kimono” and “we” and “our” mean Kimono LLC of 35 West Broadway Suite 103, Salt Lake City, Utah and all subsidiaries and affiliates of Kimono LLC actually involved in delivering the Services to you.
  • The phrase “Kimono Services” and the word “Services” are both defined as all products and services that Kimono makes available through this and related web sites, including the site itself, the Kimono data and interoperability platform, supported APIs, and any other software or services offered by Kimono in connection to any of those.

1. Access to Kimono Services

In return for your agreement to and continued adherence to the promises set forth herein and the payment of the appropriate fees, Kimono will provide you with access to the Kimono Services. You acknowledge that your organization purchased the Services based on the feature set available at the time of purchase, and not on anything planned for the future or any oral or written promise regarding functionality. You further acknowledge that you are properly authorized by your organization to access the Kimono Services and view the data that your access rights permit.

There may be multiple levels of access to the Services and multiple components in them. Not all features will be available to all users, but Kimono promises that you will be entitled to use the features available to other users of the same access level and components. Throughout these Terms of Use, the word "Services" includes any component thereof.

The Terms of Use apply to free trials, beta testing engagements, production use, and all other uses of the Kimono Services or any component. Data you create or upload during a non-production use may not be available after the use ends if you do not thereafter convert to production use.

The users from your organization who access or use the Kimono Services are assumed to be over 18 years old; while we recognize that many users will upload data relating to children, the Kimono web site itself and other user experiences relating to the Services are intended only for older users. Thus the United States Children's Online Privacy Protection Act (COPPA) does not apply to Kimono users.

You may not do any of the following:

  • access or use the Kimono Services for the purpose of bringing an intellectual property infringement claim against Kimono
  • access or use the Kimono Services for data that does not belong to your organization (for example, two education agencies sharing a single account)
  • sell, resell, license, sublicense, distribute, rent or lease the Services
  • store or transmit infringing, libelous, obscene, or otherwise unlawful or tortious material or material in violation of a third party’s privacy rights
  • store or transmit malicious code
  • disrupt the Service
  • circumvent contractual limits or assist others to do so
  • copy the Service
  • access or use the Services in order to build a competitive or replacement product or Service

2. Your Ownership of Your Data

You retain ownership of all data you use with the Service. Kimono will not share your data with any third party.

We will resist attempts by third parties to compel disclosure of your data via legal process. If permissible, we will tell you about the attempt and involve you in the defense. However, if we lose in court we have to disclose the data. 

Kimono collects information about our users ("User Information") in the course of setting up their accounts. Kimono is designed to let our customers manage data belonging to their Organization, which may include personally identifiable information about students, staff, and others associated with their organizations ("Non-User Information", which includes but is not limited to all data that Kimono's Privacy Policy designates as either "Student Personal Information" or "Other Personal Information"). For all purposes, the definition of data includes but is not limited to both User Information and Non-User Information.

3. Other Promises

For most customers, the total of all promises between you and Kimono relating to your membership in the Services are contained in this Terms of Use document. Some engagements may have additional terms and conditions expressed in writing; those terms are incorporated into these Terms of Use by reference and are legally binding.

Unwritten terms or promises are not legally binding. We’re sorry, but that’s how it has to be.

4. Changing the Terms of Use; Price Changes

We reserve the right to change portions of these Terms of Use at any time, solely at our discretion and with no other notice. We will post such changes on the Kimono web site with their effective date. Use after that date indicates acceptance of the new Terms of Use even if you fail to read them.

If we make a price change to a Service, we will put it on the web site and additionally attempt to notify all users of that product or service via the email address we have on file for them.

5. Kimono Support

Kimono promises to provide standard support for the Services at no additional charge. Standard support is available by telephone and email between 7 AM and 4 PM US Mountain Time, Monday through Friday, except for company holidays. Some components may have a different support arrangement which will be set forth in a separate writing.

6. Operations and Availability

Kimono promises to make commercially reasonable efforts to (a) keep the Services and its components operational 24 hours per day, every day of the year, except for scheduled maintenance and unavoidable downtime, (b) back up your content and configuration information, and (c) protect the Services and its components from unauthorized or malicious access. We will notify customers of scheduled maintenance via the Kimono web site. Protective safeguards will include measures for preventing access, use, modification or disclosure of your data, applications and configuration.

7. Education Data and FERPA

Kimono promises to take strong, industry standard, commercially reasonable measures to protect the privacy of data relating to students, staff and other persons associated with your educational efforts, especially personally identifiable information. See our Privacy Policy for details, including Kimono's status and policy under the United States Family Educational Rights and Privacy Act (FERPA) as amended.

8. Our Warranty

Kimono warrants, subject to the other Terms of Use, that during the time these Terms are in effect (including the requirement that all fees be paid up), the Service will operate substantially in accordance with the documentation created by Kimono and provided with the Service. When informed of a difference between the Service operation and the documentation, Kimono will use commercially reasonable best efforts to correct such difference. EXCEPT AS SET FORTH HEREIN, THE SERVICE AND ANY RELATED DOCUMENTATION IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

9. Your Authorized Users

The Services are intended for use by personnel in public and private schools, school districts, state education agencies, and other organizations that have formally agreed to these Terms. You accept responsibility for ensuring that only authorized personnel in your organization use the Services with your data, and you will notify us promptly if you suspect an unauthorized access or use.

US Federal Government End Use Provisions. If you are with a United States federal agency, be aware that the Services (with related software and technology) are only available for ultimate federal government end use in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If you or your agency wants more rights than these, contact Kimono to see if mutually acceptable terms can be negotiated and expressed in writing. Kimono is under no obligation to grant such rights absent mutual assent and a written agreement.

10. Legal Jurisdiction

By using the Services, you represent and warrant that you understand that the Services are located in the United States of America and that United States laws and policies apply to all material in the Services, including user-generated content created by you or others.

Kimono will explore the use of non-US located servers and laws for its non-US clients and may alter this jurisdiction term in a future update to the Terms of Use or in a client-specific written agreement.

11. Registration Data; Password and Account Security

In consideration of your use of the Services, you agree to (a) enter accurate, current and complete information about you when prompted by any registration forms ("Registration Data"); (b) maintain the secrecy of your password, account, and other identifying information; (c) promptly update the Registration Data and any other information you provide to Kimono whenever it changes, so that it is accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.

You accept responsibility for ensuring that your password is not stolen or misused by another person who is not authorized by your organization’s policy to access the data. You also promise not to try to disable or circumvent any Kimono-related security mechanism. If you believe that your password has been misused or that you have identified a problem in our security, you promise to contact us immediately.

12. Kimono Services Copyright and Other Ownership

All content comprising the Kimono Services is owned by Kimono or its licensors with all rights reserved, whether such ownership is registered or not. You may use such content as you use the Service, but you may not copy, imitate or use the content elsewhere without written permission from Kimono. You also may not use it in any manner that is likely to mislead others as to who owns the content.

Kimono grants you a worldwide, royalty-free, non-assignable and non-exclusive license to use the Services and all software, artwork and other components within the Services, so long as your fees are paid and you are otherwise in compliance with the Terms of Use.

13. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KIMONO OR ITS MEMBERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, including for any monetary, business or data loss arising from your use of the Services (including any component thereof, any content thereon, or any third party site or content accessed via the Services), even if Kimono is aware of or has been advised of the possibility of such damages. In any case, Kimono's entire liability under any provision of this agreement shall be limited to the amount actually paid by you to Kimono, regardless of the cause or form of action. You acknowledge that if no amount has been paid to Kimono by you, you shall be limited to injunctive relief only (unless otherwise permitted by law); in such a case you shall not be entitled to damages of any kind from Kimono, regardless of the cause of action.

BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

14. Mutual Indemnification

Indemnification by Us. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that the use of a purchased Service in accordance with these Terms infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a Claim Against You, provided you (a) promptly give us written notice of the Claim Against You, (b) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to the Service, we may in our discretion and at no cost to you (i) modify the Service so that it no longer infringes or misappropriates, without breaching our warranty, or (ii) obtain a license for your continued use of that Service, or (iii) terminate your use of for that Service upon 30 days’ written notice and refund you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from content, a non-Kimono application or your breach of these Terms of Use.

Indemnification by You. You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that your data, or your use of any Services or content in breach of this agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against Us, provided we (a) promptly give you written notice of the Claim Against Us, (b) give you sole control of the defense and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases us of all liability), and (c) give you all reasonable assistance, at your expense.

This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

15. Dispute Resolution

If you and Kimono enter into a dispute, the dispute shall be resolved as follows. First, Kimono will attempt to work things out with you (and any other affected parties) through communication. If the dispute cannot be resolved by such interaction, you and Kimono agree to go to mandatory non-binding mediation under the laws of the State of Utah. If mediation is not successful, then either party may file an action in a court of the United States as follows: if you file the action, then you agree that you must file in the State or Federal courts located in Salt Lake City, Utah, and that jurisdiction and venue will be proper in those courts, while if we file the action, then we agree that we must file in the US Federal or State courts nearest to your organization’s address as recorded in the Services registration information, and we agree that jurisdiction and venue will be proper in those courts. You and we agree that in any event the laws of the State of Utah will govern without regard to choice or conflicts of law rules.

16. Ideas and Suggestions

If you suggest an idea to us, you assign us complete joint ownership in such idea including any copyright, trademark, patent or other intellectual property rights therein, or if you legally cannot assign us such ownership, then you grant us a complete, irrevocable, paid-up, worldwide license to such rights. You will retain the ability to do whatever you want to do with that idea without any payment or other obligation to us, and we will have the same rights without obligation to you.

17. Cancellation / Termination

You can cancel your Services at any time by requesting that your account be deactivated, with no other requirement or obligation to us. If you choose to cancel, we are not obligated to return any moneys paid but we may choose to do so in our sole discretion.

We can cancel your Services at any time by deactivating your account with 30 days notice; in such a case we must refund the pro-rated balance owing from what you have paid us. We can deactivate with no notice if, in our sole judgment, we reasonably believe that a significant harm to a person or property is likely to occur or is occurring, or if we have reasonable evidence that persons in your organization have involved our Services in serious violations of the law.

The Terms in the following sections will survive cancellation: Your Ownership of Your Data, Education Data and FERPA, Legal Jurisdiction, Kimono Services Copyright and Other Ownership, Limitation of Liability, Mutual Indemnification, Dispute Resolution, Ideas and Suggestions, and Other Legal Terms.

18. Other Legal Terms

Your organization and Kimono are independently contracting for this relationship. There is no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the two.

If we have to notify you of something, we will use the email address you provided at registration, or we’ll put it on the Kimono web site. This applies even if the notification is required by law. If you have to notify us of something, send it to one of the “@kimonocloud.com” email addresses on our web site or start a support case for it on our support page.

If either you or Kimono chooses to not exercise or enforce a legal right under these Terms or applicable law, that won’t be a general waiver of that right; all rights will still be available to both parties.

If a court of competent jurisdiction invalidates any provision of these Terms, all the other Terms will remain in effect.

Neither you nor Kimono will be liable for failed or delayed performance caused by something beyond reasonable control—fire, flood, governmental action (of an entity other than you), acts of terrorism, labor strike, power failure, Internet outage, earthquake or act of God. Both parties will attempt to establish contact as soon as possible to discuss how to proceed afterwards.

 


Copying These Terms Themselves

If you’re with another vendor or web site and want to use these terms as a starting point for your own Terms of Use or Terms of Service document, you may (see below for details). Much of our document came from, or was inspired by, Terms of Service documents used by Salesforce, Heroku, and Facebook, and we suggest you also look at them. Have an attorney write, or at least review, your Terms of Use before you deploy them. You’ll thank yourself later.

The text of this Terms of Use document is copyright © 2013-2015 by Kimono LLC. All rights reserved.

A license is hereby granted to anyone, anywhere, to use, copy, modify and distribute these Terms of Use in whole or in part, so long as Kimono’s name, address, email address and other identifiable information in the body of the terms is removed or replaced with another organization’s information. We’d appreciate it if you mention us somewhere, but it’s not required.

support@kimonocloud.com
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