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Kangarootime Customer License Agreement

This Customer License Agreement and, as applicable, the Billing Services Agreement (collectively, the “Agreement”) sets forth the legal contract between Kangarootime (“Kangarootime” “We,” “Us,” or “Our”) and you as an end user of Kangarootime’s services (“You” and “Your”) with respect to access to and use of Kangarootime’s products and services as specified in the applicable Order Form (the “Services”), and any associated materials or documentation or content therein (“Materials”) made available through the Services. 

This Agreement is written in the English language.  We do not guarantee the accuracy of any translated versions of these Terms.  To the extent any translated versions of this Agreement conflict with the English language version, the English language version of this Agreement shall control. 

GENERAL CONDITIONS 
Please carefully read this Agreement before using Our Services.  By using Our Services, You agree to be bound by the Agreement including the Binding Arbitration Clause and Class Action Waiver described in Section XIII.  If You do not agree to these terms, then You must not use Our Services.  If You violate the Agreement, We reserve the right to deny You access to Our Services, together with any and all other legal remedies. 

The headings used herein are included for convenience only and will not limit or otherwise affect this Agreement. 

USE OF THE SERVICES AND CONTENT 
General. 
Subject to and conditioned on Your payment of fees and compliance with this Agreement and the applicable Order Form, Kangarootime grants You a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services and Content solely for Your personal or internal use during the Term (as defined below). 

We reserve the right to, at any time, temporarily or permanently, modify or discontinue any features associated with the Services with or without notice and for any reason, including performing maintenance, repairs or upgrades.  We will endeavor to provide notice before any scheduled upgrades.  We (and Our licensors) remain the sole owner of all rights, title, and interest in the Services.  We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. 

Connectivity. 
You are responsible for obtaining and maintaining, at Your sole expense, all hardware, software, equipment, devices, and services that You require to access and use the Services. We are not responsible for and have no liability with respect to the selection, purchase, maintenance or proper functioning of any such hardware, software, equipment, devices and services. 

Acceptable Use 
Prohibited Uses.  In addition to other prohibitions as set forth herein, You are prohibited from using the Services or Content to: (a) transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam” or any other similar solicitation; (b) systematically retrieve data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from Us; (c) make any unauthorized use of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses; (d) use a buying agent or purchasing agent to make purchases on the website; (e) advertise or offer to sell goods and services; (f) engage in unauthorized framing of or linking to the Services; (g) engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools; (h) interfere with, disrupt, or create an undue burden on the website or the networks or services connected to the Services; (i) sell or otherwise transfer Your profile; (j) use the Services as part of any effort to compete with Us or otherwise use the Services and/or the content for any revenue-generating endeavor or commercial enterprise; (k) decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the website; (l) copy or adapt the Services’ software, including but not limited to Flash, PHP, HTML, JavaScript, or other code; (m) upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, malicious code, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services; (n) upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”); (o) except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Services, or using or launching any unauthorized script or other software; or (p) perform any acts or functions that may be deemed a breach or violation of any of Our Terms & Conditions or Website Privacy Policy.  We reserve the right to terminate Your use of the Services or any related website for violating any of the prohibited uses. 

INTELLECTUAL PROPERTY 
All Materials available through the Services, including but not limited to design, artwork, hyperlinks, text, videos, calendars, software, images, technical drawings, blog posts, podcasts, audio, images, art, code, configurations, graphics, other files, and their selection and arrangement, is the proprietary property of Kangarootime, Our affiliates, or licensors and is protected by United States and international intellectual property and proprietary rights laws.  We reserve any and all rights to the Materials.  The Materials may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means in whole or in part without Our prior written permission except You may download and print Materials for non-commercial uses that are not competitive with or derogatory to Us, provided that You keep all copyright or other proprietary notices intact, do not alter such Materials, and do not further reproduce, publish or distribute such Materials.  Please note that this limited consent may be revoked at any time by Us and does not include consent to republish Materials on the Internet, or any Intranet or Extranet site, or to incorporate the Materials in any data base or other compilation.  Any other use of the Materials is strictly prohibited.  You further agree that You will not systematically extract, collect or harvest through electronic means or otherwise, any data or data fields from Our Services, including but not limited to customer identities or Information. 
All registered and unregistered trademarks visible or accessible through Our Services are trademarks of Kangarootime, or licensors, and may not be copied, imitated, or used in whole or in part without the prior written permission of Kangarootime, or its owners.  All page headers, customer graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Ours or Our affiliates and may not be copied, imitated or used in whole or in part without prior written permission of Us. 

PAYMENT 

All fees due for the Services are set forth in the applicable Order Form.  All fees referred to in this Agreement are in United States dollars and do not include any duties, taxes or handling fees. Whenever imposed, all duties, taxes and handling fees are payable by You.  Income or other taxes that are required to be paid or withheld by You or Kangarootime under the laws of jurisdictions other than the United States, in connection with the fees for the Services and other fees paid by You hereunder, are Your sole obligation and shall be exclusive of the Service fees and other fees paid by You to Kangarootime.   

TERM AND TERMINATION 

  1. Term.  Unless otherwise specified in the Order Form, (i) the term of this Agreement an each Order Form shall commence on the Effective Date as specified in the applicable Order Form and shall continue for the duration of the Initial Term as specified therein (the “Initial Term”), and (ii) following the Initial Term, this Agreement and each Order Form shall automatically renew for successive one (1) year terms (each a “Renewal Term”) (the Initial Term and Renewal Term(s), collectively referred to the “Term”) unless either party notifies the other party of its decision not to renew ninety (90) days prior to the expiration of the current term.  The fees set forth in the applicable Order Form may be subject to increase upon any autorenewal.  All orders are non-refundable, including in cases where You have cancelled an order and/or has not used the Services.  Any amount payable under this Agreement that is not paid within 45 days after its invoice date will accrue interest at the lesser of 1.5% per month or at the maximum lesser rate allowed by law.  You will pay Kangarootime all such interest and costs of collection, including but not limited to, attorneys’ fees and court costs.   
  1. Termination
  1. Effect of Termination. Upon termination or expiration of this Agreement for any reason, Your access rights granted hereunder shall also terminate, and You shall cease using the Services and Materials. 

ACCURACY, COMPLETENESS & TIMELINESS OF INFORMATION 
Errors, Inaccuracies, & Omissions 
Our Services may contain typographical errors, inaccuracies, or omissions that may relate to Our offerings, promotions, packages, programs, events, and materials.  We do not warrant the accuracy, completeness, or usefulness of this information.  We disclaim all liability and responsibility placed on such information by You, or by anyone who may be informed of any of its contents. 

We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders or programs if any information about Our offerings, promotions, packages, programs, events, or materials in the Services or on any related website, are inaccurate at any time without prior notice (including after You have submitted Your order, request, submission, payment, form, etc.). 

We do not take on any obligation to update, amend, or clarify information on the Services or on any related website, including without limitation, pricing, dates, availability, location, products, and services, except as required by law. 

No specified update or refresh data applied in the Services or on any related website should be taken to indicate that all information in the Services or on any related website has been modified or updated. 

Links to the Services 
You may not create a link to any page of Our Services without Our prior written consent.  If You do create a link to a page of Our Services, You do so at Your own risk and the exclusions and limitations set out above will apply to Your use of Our Services by linking to them. 

Links in the Services 
Our Services might include links to other websites, mobile applications, or social media platforms.  We are not responsible for examining or evaluating the content or accuracy of any other website and do not warrant and will not have any liability or responsibility for any other party’s materials or websites or for any other materials, products, or services of other websites.  We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any other party’s websites or other platforms.  Please review carefully other party’s website policies and practices and make sure You understand them before You engage in any transaction.  Claims, complaints, questions, or concerns regarding other parties should be directed to that party. 

BILLING SERVICES 

Upon execution of the Billing Services Agreement, We will render the Billing Services described therein; provided, however that You pay the Billing Service Fees set forth in the application Order Form.     

CONFIDENTIALITY 
You may use Our Confidential Information only in connection with Your use of the Services as permitted under this Agreement. You will not disclose Our Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all measures to avoid disclosure, dissemination or unauthorized use of Our Confidential Information that You take to protect Your confidential information of a similar nature, but in no event less than reasonable measures. 

You will not issue any press release or make any other public communication with respect to this Agreement or Your use of the Services. 

You shall implement and maintain administrative, physical, and technical safeguards based upon risk assessment for the protection of the security, confidentiality, and integrity of Our Confidential Information, as required by applicable laws.  Your security measures must be designed to protect Our Confidential Information from and against accidental or unlawful destruction, loss, alteration, or authorized disclosure or access. 

“Our Confidential Information” means all nonpublic information disclosed by Us that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Our Confidential Information includes: (a) nonpublic information relating to Our technology, services, business plans, promotional and marketing activities, finances and other business affairs, and customers and (b) third-party information that We are obligated to keep confidential.  Our Confidential Information does not include any information that: (i) is or becomes publicly available without Your breach of this Agreement; (ii) can be shown by documentation to have been known to You at the time of Your receipt from Us; (iii) was or becomes available to You on a non-confidential basis from a source other than Us,  if such source has the right to disseminate such information on a non-confidential basis; or (iv) can be shown by documentation to have been independently developed by You without the use of Our Confidential Information. 

YOUR OBLIGATIONS. 

YOUR WARRANTIES 
You warrant and represent that: 

KANGAROOTIME WARRANTIES; DISCLAIMERS 
OUR SERVICES, AND THE INFORMATION ON OR AVAILABLE THROUGH OUR SERVICES, IS PROVIDED ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATION, WARRANTIES, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITION OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.  WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF OUR SERVICES, WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.  WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.  YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE THE SERVICES FOR INDEFINITE PERIODS OF TIME OR CANCEL THEM AT ANY TIME WITHOUT NOTICE TO YOU.  TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXCLUDE ALL REPRESENTATIONS AND WARRANTIES RELATING TO OUR SERVICES, OR RELATED CONTENT, WHICH IS OR MAY BE PROVIDED BY ANY AFFILIATE OR ANY OTHER THIRD PARTY. 

IN NO CASE SHALL WE, OUR EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, DAMAGE CAUSED TO YOUR COMPUTER, COMPUTER SOFTWARE, SYSTEMS AND PROGRAMS AND THE DATA THEREON, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE ARISING FROM YOUR USE OF THE SERVICES OR IN ANY WAY RELATED TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS IN ANY USE OF THE SERVICES OR ANY CONTENT OR PRODUCT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE.  IN ANY EVENT, THE AGGREGATE LIABILITY OF US AND OUR AFFILIATES AND OUR SERVICE PROVIDERS UNDER THIS AGREEMENT SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500.00). 

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. 

INDEMNIFICATION 
To the fullest extent permitted by law, and except to the extent arising from Our gross negligence or intentional misconduct, You agree to indemnify, defend, and hold harmless Us, and Our employees, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, from any claim or demand, including reasonable attorneys’ fees made by any third party due to or arising out of Your breach of this Agreement or the documents they incorporate by reference, or Your violation of any law or rights of a third party.  We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You shall cooperate with Us in asserting any available defenses.  You shall not settle any actions or claims on Our behalf without Our prior written consent. 

Professional Services 

During the Term, You may request Kangarootime to perform professional services in the nature of software development, ad hoc report creation, customization add-in, documentation or integration services outside of this Agreement (hereinafter, “Professional Services”).  Upon receipt of a request, We may provide You with a written proposal, and when the parties agree to all requirements of the proposed Professional Services, a Statement of Work for the Professional Services shall be executed by the parties. All Statements of Work shall be subject to the terms and conditions of this Agreement. Professional Services performed by Kangarootime are not exclusive to You, and We may perform services of any type or nature for any other person at any time. 

GOVERNING LAW 
This Agreement and any separate agreements whereby We provide You access to the Services shall be governed and construed in accordance with the laws of the state of New York without reference to any conflict of law rules. 

You agree that You will not use the Services in any country or in any manner prohibited by any applicable laws, restrictions or regulations. 

ARBITRATION CLAUSE AND CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS 

Arbitration Notice 
You and Kangarootime  agree that if there is any dispute or claim arising from or related to Our Services and/or this Agreement will be resolved by confidential binding arbitration in Erie County, New York, rather than in court, after first giving Notice of the Dispute (“Notice”) to the other party and the opportunity to discuss resolution within thirty (30) days of such Notice.  The Notice to the Company should be sent to: 1 W. Seneca Street, Floor 24, Buffalo, NY 14203.  This Notice must include a description of the nature and basis of the claims the party is asserting, and the relief sought 

If You and Kangarootime are unable to resolve the claims described in the Notice within thirty (30) days after the Notice is sent, You or the Company may initiate arbitration proceedings.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the provisions of these Terms & Conditions as a court would.  YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT. 

The Federal Arbitration Act and federal arbitration law apply and the American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes.  Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. 

The arbitration shall be held in the State of New York or at another mutually agreed location.  If the value of the relief sought is $10,000 or less, You or the Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on You and the Company subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant.  Attendance at an in-person hearing may be made by telephone by You and the Company, unless the arbitrator requires otherwise. 

The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by applicable law.  The arbitrator’s award shall be confidential, final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. 

Notwithstanding any provision in this Agreement to the contrary, You and the Company agree that if the Company makes any change to this Section (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a proceeding against Us prior to the effective date of the change.  Moreover, if We seek to terminate this Section, any such termination shall not be effective until thirty (30) days after the version of the Agreement containing this Section is posted to the websites, and shall not be effective as to any claim that was filed in a proceeding against Us prior to the effective date of termination. 

CLASS ACTION WAIVER:  YOU AND THE COMPANY AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.  If for any reason a claim proceeds in court rather than in arbitration, We each waive any right to a jury trial.  We also both agree that You or the Company may bring suit in court to enjoin infringement or other misuse of intellectual property rights. 

Claims and Disputes Must be Filed Within One Year 
To the extent permitted by law, and without limiting the effect of any disclaimer contained herein, any cause of action or claim You may have with respect to Your use of the Services, including, without limitation, any website or mobile application or other Services-related product, services, or other content must be commenced within one (1) year after the claim or cause of action arises.  This section applies to You and Your heirs, successors and assigns. 

SEVERABILITY 
To the extent that any provision of this Agreement is deemed to be unlawful, void, or unenforceable, including the binding arbitration clause and class action waiver, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from this Agreement.  Such determination shall not affect the validity and enforceability of any other remaining provisions. 

FORCE MAJEURE 

Except for any payment obligations under this Agreement, neither party shall be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, and other causes beyond the Party’s reasonable control). The party affected by the force majeure event shall provide notice to the other party within a commercially reasonable time and shall use its best efforts to resume performance. Obligations not performed due to a force majeure event shall be performed as soon as reasonably possible when the force majeure event concludes. 

NO THIRD-PARTY BENEFICIARIES 
There are no third-party beneficiaries to this Agreement.  We shall have the right to assign Our rights or delegate any of its responsibilities under this Agreement to an affiliate or in connection with a merger, consolidation, or reorganization for the sale of substantially all of Our assets. 

CHANGES TO THESE TERMS & CONDITIONS 
This Agreement, together with the applicable Order Forms and, if applicable, the Billing Services Agreement, contains the entire understanding of the parties with respect to the transactions contemplated and supersedes any prior agreements or  understandings among the parties with respect to the subject matter hereof.  We reserve the right to change, modify, or amend this Agreement at any time to reflect changes in Our practices and service offerings.  If We modify this Agreement, such changes will be effective upon posting.  It is Your obligation to check Our current Agreement for any changes.  This Agreement may only be modified in writing.  Any ambiguities in the interpretation will not be construed against the drafter.  In the event of a conflict between the Order Form, the Billing Services Agreement and the End User License Agreement, the order of precedence shall be: (a) the Order Form; (b) the Billing Services Agreement; (c) this Agreement; and (d) the End User License Agreement.   

NOTICES 

Any notice required or permitted hereunder shall be in writing and shall be deemed to have been duly given (i) upon hand delivery, (ii) on the third day following delivery to the U.S. Postal Service as certified mail, return receipt requested and postage prepaid, (iii) on the first day following delivery to a recognized overnight courier service, fee prepaid and return receipt or other confirmation of delivery requested, (iv) upon confirmation of receipt by the party to receive such notice, of a fax sent to the fax number of such party, or (v) upon confirmation of receipt by the party to receive such notice, of an e-mail sent to the e-mail address of such party.  Any such notice shall be delivered or sent to a party at its address, fax number or e-mail address as set forth in the applicable Order Form, or to such other address or fax number as may be designated by a party in a notice given to the other from time to time in accordance with the terms of this paragraph. 

INDEPENDENT CONTRACTOR 

Nothing in this Agreement, and no course of dealing between the parties, shall be construed to create an employment or agency relationship or a partnership between a party and the other party or the other party’s employees or agents. Each party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security, if applicable), workers compensation, and all other employment benefits. 

EQUITABLE RELIEF 

We may seek injunctive or other equitable relief necessary to protect Our interests and right including, without limitation, actions necessary to enjoin the release of Our Confidential Information. 

SURVIVAL   

The provisions of this Agreement that by their nature would survive its termination will survive indefinitely. 

ASSIGNMENT  

Your rights may not be transferred, assigned, or sublicensed by You without the prior written consent of Us. Any action or conduct in violation of the foregoing shall be void and without effect.  In the event of such a transfer, assignment, or sublicensing, You shall not be relieved of its obligations hereunder, and the successor must assume the terms and conditions of this Agreement in a manner acceptable to Us. 

HOW TO CONTACT US 
If You have any questions about this Agreement, please send Us an email at privacy@kangarootime.com 

Last Update: April 1, 2023