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.)
- 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 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
- 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.
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.
3. Other Promises
Unwritten terms or promises are not legally binding. We’re sorry, but that’s how it has to be.
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
8. Our Warranty
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.
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.
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 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