TERMS AND CONDITIONS
These Terms and Conditions shall become a part of the Order Form (collectively referred to as the “Agreement”) and signed by entity signing these Terms and Conditions (“CUSTOMER”) and Ikaun Inc., a Delaware corporation located at 200 Spectrum Center Drive, Suite 2000, Irvine, California, 92618 (“IKAUN”). BY SIGNING T THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS HEREIN. This Agreement governs your use of the web-based administrative platform “Ikaun” (the “PLATFORM”).
- RIGHTS GRANTED AND RESTRICTIONS
- ACCESS Grant. Subject to the terms and conditions of this Agreement and the associated ordering document (“Order Form”), IKAUN hereby grants to CUSTOMER, its employees, agents and contractors (collectively referred to as “Users”), a non-exclusive, limited, revocable right to access and use the PLATFORM on IKAUN’s hosted environment within the United States.
- Use Restrictions. The rights granted under this Agreement shall be further limited to the PLATFORM specifications and the length of the Service Term specified in the applicable Order Form. CUSTOMER will not: (a) make the PLATFORM available to anyone other than CUSTOMER or Users or for the benefit of anyone other than CUSTOMER, unless expressly stated otherwise in the Order Document; (b) sell, resell, license, distribute or make available the PLATFORM to any third-party; (c) use the PLATFORM to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) attempt to gain unauthorized access to the PLATFORM or its related systems or networks; (e) modify, copy, or create derivative works based on a PLATFORM, feature, function or user interface thereof; (f) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the PLATFORM or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the PLATFORM, (3) copy any ideas, features, functions or graphics of the PLATFORM, or (4) determine whether the PLATFORM are within the scope of any patent.
- LIMITATIONS. IKAUN’S ability to provide functionality, accurate analytics and data through the PLATFORM is based upon the assumption that any/all data provided by CUSTOMER related to setup/configuration of the PLATFORM is accurate and in the format required by IKAUN and the PLATFORM.
- Ownership. CUSTOMER acknowledges and agrees that access to the PLATFORM is licensed and that: (i) the PLATFORM is protected under U.S. and international intellectual property laws; (ii) IKAUN retains all intellectual property rights in the PLATFORM; and (iii) there are no implied licenses under this Agreemen and any rights not expressly granted to CUSTOMER hereunder are reserved by IKAUN. As between CUSTOMER and IKAUN, CUSTOMER retains all rights title and interest in and to Customer Content.
- OTHER PRODUCTS AND SERVICES
- PLATFORM MAINTENANCE AND SUPPORT. Support and maintenance shall be provided by IKAUN to CUSTOMER in connection with CUSTOMER’s use of the PLATFORM (the “MAINTENANCE PROGRAM”) as identified in the applicable Order Form and further described in Attachment #1 hereto. The MAINTENANCE PROGRAM includes limited technical support for standard issues related to the PLATFORM. CUSTOMER shall designate Points of Contact that are authorized to contact the IKAUN Support Team. The number of authorized Points of Contact will be set forth in each Order Form, and the name, address, email address, phone and mobile phone number for each Point of Contract must be provided by CUSTOMER to IKAUN. Only the authorized Points of Contact may contact the CUSTOMER Support Team at email@example.com.
- PROFESSIONAL SERVICES.
The MAINTENANCE PROGRAM does not include the following services (collectively referred to as “Professional Services”): (i) any specialized PLATFORM installation or integration services (“Installation & Integration Services”), (ii) installation or support of third-party hardware or software, or (iii) significant functionality enhancements to the PLATFORM. If CUSTOMER chooses to engage IKAUN to perform Professional Services, the parties shall enter into a signed Statement of Work (“SOW”) subject to terms of this Agreement. The SOW shall set forth the scope of work, price, invoicing terms, and any other terms related to the Professional Services. To the extent that IKAUN is assisting CUSTOMER with Professional Services relate the PLATFORM, CUSTOMER agrees that such resources shall be readily available, and shall provide prompt responses to IKAUN’s requests.
- THIRD PARTY PRODUCTS.
At CUSTOMER’S discretion, CUSTOMER procure services, applications and third party content for use with the PLATFORM (“Third-Party Products”). Any such use is subject to the end-user license terms or use Agreement that governs the use of such Third Party Products and CUSTOMER understand and agrees that IKAUN has no liability with respect to CUSTOMER’S procurement or use of such Third-Party Products.
- FEES AND PAYMENT.
- MONTHLY Fee. IKAUN shall activate the PLATFORM for CUSTOMER with a reasonable period of time of receiving a fully executed Order Form or as otherwise agreed in the Order Form. If CUSTOMER has not prepaid for the PLATFORM via credit card, IKAUN shall invoice CUSTOMER on an annual basis at the beginning of a license term for the PLATFORM that is purchased by CUSTOMER under the applicable Order Form.
- PAYMENT TERMS. Unless otherwise stated in the applicable Order Form, payment terms are Net thirty (30) from the date of each invoice. Invoices not paid within thirty (30) days from the date of each invoice will incur interest from the due date (until paid) at a rate of one and one-half percent (1.5%) per month. IKAUN reserves the right to terminate CUSTOMER’S access to the PLATFORM in the event that any invoice remains outstanding in excess of forty-five (45) days past due.
- General Warranty. IKAUN warrants that it has full power and authority to grant CUSTOMER the rights granted herein, and that the PLATFORM and accompanying documentation are free of any and all restrictions, settlements, judgments or adverse claims.
- DISCLAIMER. THE PLATFORM IS PROVIDED ON AN "AS-IS" BASIS. AS FAR AS LEGALLY PERMISSIBLE, IKAUN DISCLAIMS ALL WARRANTIES RELATING TO THE PLATFORM, MAINTENANCE PROGRAM, OR PROFESSIONAL SERVICES, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY OR NON-INFRINGEMENT, AND IKAUN DOES NOT WARRANT THAT THE PLATFORM OR ANY THIRD PARTY PRODUCT WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME.
- TERM & TERMINATION.
- Term. This Agreement is effective from the date that IKAUN and CUSTOMER sign this Agreement below (“EFFECTIVE DATE”), and is valid until terminated by either Party in accordance with this Agreement.
- Termination for Breach. Either Party may terminate this Agreement or any Order Form by written notice to the other Party if the other Party breaches any material provision of this Agreement (or the Order Form) and such breach is not cured within thirty (30) days after written notice thereof is received by the breaching Party.
- TERMINATION FOR CONVENIENCE. IKAUN may terminate this Agreement or any Order Form for convenience upon thirty (30) days prior written notice to Customer. Any prepaid fees made by CUSTOMER for the PLATFORM shall be prorated and refunded to CUSTOMER within a reasonable period of time from the effective date of termination.
- INDEMNIFICATION & LIMITATION OF LIABILITY.
- By IKAUN. IKAUN will defend, indemnify, and hold harmless CUSTOMER, its successors, directors, and employees from and against any and all losses, damages, and final judgments (including reasonable attorney’s fees) arising out of any claim by a third-party that CUSTOMER’S use of the PLATFORM in accordance with this Agreement infringes any copyright or trademark or misappropriates any trade secret rights recognized under applicable law, provided that such liability is not an Exclusion (as defined herein). For purposes of this Section, an “EXCLUSION” shall be defined as: (A) third-party PLATFORM components or services that are not provided by IKAUN, (B) unauthorized modifications to the PLATFORM, or (C) unauthorized use of the PLATFORM or use of the PLATFORM other than in accordance with the PLATFORM documentation. If the PLATFORM becomes the subject of an infringement claim, IKAUN may, at its option and expense, either procure for CUSTOMER the right to continue exercising the rights licensed to CUSTOMER in this Agreement, or replace or modify the PLATFORM so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in IKAUN’s reasonable option, commercially reasonable, IKAUN may terminate this Agreement and will refund to CUSTOMER a pro-rata portion of any applicable pre-paid fees. Notwithstanding the foregoing, IKAUN will have no obligation under this Section 6(A)(1) or otherwise with respect to any infringement claim based upon any EXCLUSIONS, or continued use of anything other than the current version of the PLATFORM. This Section 6(A)(1) states IKAUN’s entire liability and CUSTOMER’s sole and exclusive remedy for infringement claims and actions.
- 2. BY CUSTOMER. CUSTOMER will defend, indemnify, and hold harmless IKAUN, its successors, directors, and employees from and against any and all losses, damages, judgments (including reasonable attorney’s fees) arising out of any claim that: (i) the storage or processing of Customer Content violates applicable law or any individual’s rights; or (ii) CUSTOMER’S use of the PLATFORM violates applicable law.
- INDEMNIFICATION PROCEDURE. The foregoing indemnification obligations are conditioned on the party entitled to indemnification hereunder (“Indemnified Party”): (i) notifying the party with indemnification obligations (“Indemnifying Party”) prompt written notice of such claim, provided however that, failure to provide prompt written notice shall only excuse the Indemnifying Party hereunder of its obligations to the extent that the Indemnifying Party’s liability is prejudiced by such delay; (ii) The Indemnified Party giving the Indemnifying Party sole control of the defense thereof and any related settlement negotiations; and (iii) the Indemnified Party reasonably cooperating assisting in such defense.
- LIMITATION OF LIABILITY.
IKAUN WILL NOT, UNDER ANY CIRCUMSTANCES OR ANY THEORY OF LIABILITY, BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF DATA, OR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES ARISING FROM THIS AGREEMENT, THE PLATFORM, MAINTENANCE PROGRAM, OR PROFESSIONAL SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT THE ENTIRE LIABILITY OF IKAUN, AND CUSTOMER’S, OR ANY THIRD PARTY’S EXCLUSIVE REMEDY WITH RESPECT TO THE PLATFORM, MAINTENANCE PROGRAM, PROFESSIONAL SERVICES OR ANY BREACH OF THIS AGREEMENT BY IKAUN IS LIMITED TO THE AMOUNT PAID BY CUSTOMER TO IKAUN FOR LICENSE TO USE THE PLATFORM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF A CLAIM, REGARDLESS OF THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS GIVING RISE TO THE LIABILITY. CUSTOMER HEREBY RELEASES IKAUN AND SUCH OTHER PERSONS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION.
- CONFIDENTIAL INFORMATION.
- DEFINED. As used herein, "CONFIDENTIAL INFORMATION" means all information provided by a Party to the other Party that is designated as “CONFIDENTIAL,” however shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to a Party hereunder, (ii) was known by the Party receiving the information (the “RECEIVING PARTY”) prior to its disclosure without breach of any obligation owed hereunder, as demonstrated by written records, (iii) is received by the Receiving Party from a third party without breach of any obligation owed to the other Party hereunder, or (iv) was independently developed by the Receiving Party without reference to the CONFIDENTIAL INFORMATION, as demonstrated by written records.
- RESTRICTIONS. Receiving Party will comply with the following restrictions: (i) Receiving Party shall not disclose the CONFIDENTIAL INFORMATION to any other person or entity without obtaining the prior written consent from the Party that disclosed such CONFIDENTIAL INFORMATION (the “DISCLOSING PARTY”), (ii) Receiving Party shall only use the CONFIDENTIAL INFORMATION in contemplation and furtherance of the services performed or received under this Agreement, (iii) Receiving Party shall restrict disclosure of Confidential Information solely to those employees or agents of RECEIVING PARTY that have a "need to know" such information and have agreed in writing to be bound by the provisions of this Agreement, (iv) Receiving Party shall make copies of the CONFIDENTIAL INFORMATION only as necessary to disseminate to appropriate employees or agents of Receiving Party as permitted herein, (v) Receiving Party will safeguard the Confidential Information with the same degree of care as Receiving Party uses to protect its own confidential and private information; and (vi) Receiving Party will comply with all applicable laws and regulations, in connection with its use of the Confidential Information. If Receiving Party is compelled by law to disclose any Confidential Information, Receiving Party shall give DISCLOSING PARTY prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, if DISCLOSING PARTY wishes to contest the disclosure.
- MISCELLANEOUS PROVISIONS
- INDEPENDENT Contractor. IKAUN and its personnel, whether employees or contractors, will at all times be under the exclusive control and direction of IKAUN and will not be deemed employees of C CUSTOMER and IKAUN agree that neither party will be an employee, agent, partner or joint venture of or with the other.
- No Waiver. The waiver of any term, condition, or provision of this Agreement must be in writing and signed by an authorized representative of the waiving Party. Any such waiver will not be construed as a waiver of any other term, condition, or provision except as provided in writing, nor as a waiver of any subsequent breach of the same term, condition, or provision.
- EXCUSABLE DELAY. Neither party will be liable to the other for any loss, damage, delay or breach in performing its obligations hereunder to the extent resulting from any cause or event beyond the control of the party being release hereby, including acts of God, telecommunication or power suppliers, and acts or omissions of civil or military authorities, but only to the extent such party being released did not contribute to the impact thereof.
- Severability & SURVIVAL. If any provision in this Agreement is held invalid or unenforceable by a body of competent jurisdiction, such provision will be construed, limited or, if necessary, severed to the extent necessary to eliminate such invalidity or unenforceability. The parties agree to negotiate in good faith a valid, enforceable substitute provision that most nearly effects the parties’ original intent in entering into this Agreement or to provide an equitable adjustment in the event no such provision can be added. The other provisions of this Agreement will remain in full force and effect. Expiration or termination of this Agreement shall not relieve either Party of its obligations regarding intellectual property, warranties, confidentiality, indemnification, and limitation of liability.
- Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws of the State of California regardless of any conflict of law principles. Any suit, action or proceeding arising out of or relating to the PLATFORM or this Agreement shall only be instituted in the County of Orange, State of California.
- IKAUN may use CUSTOMER’s name and/or logo in any press releases, announcements, media outreach and online mediums as they relate to CUSTOMER’S usage of the PLATFORM.
- Any notice or consent required to be given under this Agreement shall be in writing and, if to IKAUN, shall be addressed to the address set forth in the opening paragraph of this Agreement (Attn: Legal Department). Notices to CUSTOMER shall be addressed to the contact designated by CUSTOMER in the associated Order Form.
- Entire Agreement. This Agreement (and Order Form) comprises the entire understanding between the Parties with respect to its subject matters and supersedes any previous communications, representations, or agreements, whether oral or written. No provisions of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the party or parties hereto to be bound.
IN WITNESS WHEREOF, the parties by their duly authorized representatives have caused this Agreement to be effective as of the last date signed.
- Maintenance and Support
- STANDARD HOURS & OFF-HOURS. The IKAUN Support Team will be available to receive support requests (via telephone and email) between 6:00am and 6:00pm Pacific Standard Time, Monday through Friday (“Standard Hours”). Outside of the Standard Hours, the IKAUN Support Team will be available to receive support requests via telephone only (not email).
- PRIORITIZATION. After the initial support request is made by CUSTOMER, the request is triaged by the IKAUN Support Team based upon Severity Level.
Severity Level 1 (Emergency): The PLATFORM is totally inoperative. This Severity Level can only be assigned to situations in which the PLATFORM has already been operating in production or “live” environments.
Severity Level 2 (High): The PLATFORM is usable, but functionality is degraded or restricted in a material manner.
Severity Level 3 (Low): The PLATFORM is usable, but one or more functions may not operate as expected (however functionality is not degraded or restricted in a material manner).
- INITIAL RESPONSE TIMES. The “Initial Response Time” is the time between when CUSTOMER makes the initial email or phone request to the IKAUN Support Team, and the time at which IKAUN sends an initial response to CUSTOMER’S request.
During Standard Hours
IKAUN agrees to respond to any CUSTOMER request via email or phone, with an Initial Response Time in accordance with the following:
Severity 1 (Emergency) Initial Response Time = 1 hour.
Severity 2 (High) Initial Response Time = 2 hours.
Severity 3 (Low) Initial Response Time = 1 “Business Day” (defined as any day other than a Saturday or Sunday or a Federal holiday).
IKAUN agrees to respond to any CUSTOMER request via telephone in accordance with the following:
Severity 1 (Emergency) Initial Response Time = 1 hour.
Severity 2 (High) or Severity 3 (Low) = next Business Day.
- ESTIMATED RESOLUTION TIMES. After delivering an initial response to CUSTOMER, IKAUN will aim to provide solutions or workarounds to any reported issues as follows:
Severity 1 (Emergency) Solution/Workaround = 1 Business Day
Severity 2 (High) Solution/Workaround = 2 Business Days
Severity 3 (Low) Solution/Workaround = When commercially feasible.
- Uptime Guarantees
- UPTIME. IKAUN shall ensure that the PLATFORM retains at least a ninety-nine percent (99%) uptime measured over each calendar month. Uptime for a calendar month is calculated in accordance with the following formula:
“Uptime” = (Total mins/month) – (Total Downtime mins/month)
- DOWNTIME. “Downtime” is defined as any unavailability of the PLATFORM that: (a) commences as of the earlier of (i) the time IKAUN detects an incidence of a service interruption or (ii) the time that CUSTOMER notifies IKAUN of such interruption, and (b) ends when full functionality is restored. IKAUN shall notify CUSTOMER of any Downtime event within fifteen (15) minutes of its detection of such Downtime event. Downtime shall not include any period of unavailability due to either: (1) scheduled maintenance lasting no more than four (4) hours for which IKAUN has provided CUSTOMER with no less than forty-eight (48) hours prior notice in writing or by email (provided that IKAUN shall use all commercially reasonable efforts to minimize scheduled maintenance and to perform such maintenance during IKAUN hours of 12:00am to 4:00am Pacific Standard Time), or (2) any other event beyond the reasonable control of IKAUN, which includes without limitation any external interruption of power or telecommunications; denial of service, virus/worm or other attack; the failure or substantial failure of the Internet; the internet service provider or internal telecommunications equipment of IKAUN or any end user; the browser configurations, hardware and/or software of IKAUN or any end user; and/or any other force majeure event. IKAUN agrees to take reasonable industry standard precautions to mitigate the risk of Downtime, including but not limited to (a) use of anti-virus and anti-trojan software; (b) prompt installation of available hardware and software patches; (c) implementation of industry standard firewalls; (d) implementation of backup power generation facilities, security systems, scheduled backups, and fire protection systems.
- Exclusive Remedy for Failure to Perform. Should IKAUN fail to meet any of its Maintenance Program or Uptime commitments set forth herein in any calendar month, as CUSTOMER’s remedy for such failure, IKAUN shall issue a credit to CUSTOMER equal to five percent (5%) of the total amount of monthly fees payable by CUSTOMER to IKAUN during the preceding calendar month for each such failure. Notwithstanding the foregoing, a credit amount in any given month cannot exceed the amount of the Monthly Fee for a given month. In the event that any credits exceed the amount of the Monthly Fee, those credits shall be forfeited by CUSTOMER.