As of December 10, 2013
These Terms of Service are for KnowledgeTree® for Salesforce and the KnowledgeTree® Manager.
These Terms of Service apply to you, a user of the Service, and constitute a binding, legal agreement (“Agreement”) between you, as an individual, or if you are purchasing or using the service as part of your job responsibilities, the legal entity that you represent as specified on the Order Form, and KnowledgeTree, Inc. (“KT”). Please read all the terms and conditions of this Agreement carefully. By registering for and/or using the Service, you agree that you are bound by the terms and conditions of this Agreement, and you represent and warrant that you have full power, authority and legal capacity to enter into this Agreement. Please contact KT at [email protected] if you have any questions about this Agreement.
“Administrator” means the individual Authorized User designated by the entity entering into this Agreement as the administrator for the account.
“Authorized User” means a single individual who is authorized by the Administrator to be a user of the Service. An Authorized User has full license rights to use the Service, subject to limitations that may be imposed by the Administrator.
“Order Form” means a web-based or signed paper order form completed by you or by an authorized employee of the legal entity for whom you work when ordering the Service.
“Service” means the KnowledgeTree for Salesforce app service, and/or the KnowledgeTree Manager service, along with any terms, options and limitations relating to these services set forth in the Order Form. The Service includes the provision on a Software as a Service basis of non-exclusive use and access to the Software, and associated hosting and support services as described herein.
“Site” means the web site at www.knowledgetree.com and/or such other web site or sites that KT communicates to you where you may access some or all of the Service.
“Software” means KT’s proprietary software used by KT to deliver the Service, made available to you on a “Software as a Service” basis, and all updates and associated documentation thereto made available as a part of the Service pursuant to this Agreement.
“Trial Use” means your use of the Service during a free trial period (up to 14 days), as further described on the Site.
3.1 Under the terms of and subject to the restrictions in this Agreement, including payment of all applicable fees, KT will provide the Service on a subscription basis to you during the term of this Agreement. You may use and access the Service and Software solely through the Site; except for portions of the Service that are integrated with and made available through Salesforce.com and other third-party services. Your rights to use the Service are non-exclusive and non-transferable.
3.2 Your use of the KT for Salesforce Service is limited to the number of Authorized Users set forth in the Order Form. If and when additional Authorized Users are added by you to this Service, you will be invoiced for such additional Authorized Users, with the fees prorated for the balance of the then-current Term. The term of the additional Authorized Users shall be coterminous with the Term in effect at the time the additional Authorized Users are added.
3.3 As part of the Service, KT will provide reasonable technical support to you via e-mail and an online support portal during KT’s regular business hours. Additional terms and limitations regarding support for the Service may be included on the Site and/or the Order Form.
3.4 KT will use commercially reasonable efforts to make the Service available on a 24 hours a day, 7 days a week, and 365 days a year basis, subject to Section 13.2 (Force Majeure) below and to downtime for maintenance purposes.
3.5 KT may from time to time modify the Site and the Service and add, change, or delete features of the Service in its sole discretion, without notice to you. Your continued use of the Service after any such changes to the Service constitutes your acceptance of these changes. KT will use commercially reasonable efforts to post information on the Site regarding material changes to the Service.
3.6 You agree to be fully responsible and liable for all use of the Service by Authorized Users and their compliance with the terms of this Agreement. You agree to notify KT if you are aware of any unauthorized use of the Service by Authorized Users, or by persons who are not Authorized Users who use any user names, passwords, or other credentials of Authorized Users.
3.7 If you have acquired Trial Use of the Service, the following terms shall apply in connection with your Trial Use, notwithstanding anything to the contrary herein:
3.8 You warrant and agree not to:
3.9 As part of the Service, KT may offer access to one or more application programming interfaces (“APIs”). KT provides the APIs on an “AS-IS” basis, without warranty or support of any kind, express or implied. You acknowledge and agree that your use of the APIs is at your own risk, and that the APIs may be removed at any time from the Service without notice to you.
4.1 You agree that KT and its licensors own all intellectual property rights in and to the Service, the Software, and the Site, including but not limited to the look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays associated therewith. You will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. You further agree not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party for such third party’s benefit. KT reserves all rights in the Service and the Software not expressly granted to you hereunder.
4.2 KT may derive and compile from your usage of the Service certain aggregated and/or analytical information, so long as such aggregated or analytical information does not reveal the contents of any of your Confidential Information. Such aggregated data and metadata may be used for KT’s own purposes without restriction, including, but not limited to, using such data in conjunction with data from other sources to improve KT’s products and services and create new products.
4.3 KT shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, or other information provided by you or any Authorized User relating to the Service.
4.4 KT’s trademarks include KnowledgeTree, the KnowledgeTree logo, and KnowledgeTree Manager. Salesforce is a trademark of Salesorce.com, Inc. Any other company or product names used on the Site or in connection with the Service are the property of the respective trademark owner.
5.1 You (or the legal entity you are employed by) shall pay KT all applicable fees associated with the Service as set forth on the Order Form, and in accordance with the terms set forth therein. All payments under this Agreement are non-refundable and, unless otherwise agreed, shall be made in United States dollars. Past-due payments will be subject to late payment charges of the lesser of: (a) one and one-half percent (1 ½ %) per month, or (b) the maximum rate allowed by law. The fees and rates under this Agreement are subject to change by KT upon at least thirty (30) days written notice, which notice may include by posting the updated fees and rates on the Site.
5.2 You shall be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to state and local privilege, excise, sales, VAT, and use taxes and any taxes or amounts in lieu thereof paid or payable by KT, but excluding taxes based upon the net income of KT.
5.3 If a payment becomes ten (10) business days or more overdue, KT reserves the right to suspend your access to the Service without liability to you, until payment is made in full. If any payment becomes thirty (30) days or more overdue, KT may terminate this Agreement upon notice to you. KT has the right to change payment terms, including by requiring upfront payment for the Service, in its discretion based on your payment history and/or financial status.
6.1 “Confidential Information” means any information or data that is disclosed by one party to the other party pursuant to this Agreement that is marked as confidential. Confidential Information of KT (whether or not marked) includes the Service and Software, as well as the structure, organization, design, algorithms, templates, data models, logic flow, and screen displays associated with the Service and Software. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.
6.2 A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, and to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Without limiting the foregoing, you shall disclose and allow access to the Service only for the purpose of supporting and augmenting your use of the Service. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use diligent efforts to inform the other party prior to any such required disclosure.
6.3 Each party acknowledges and agrees that any violation of this Section 6 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.
6.4 You agree to the terms of KT’s privacy statement, which is located at http://www.knowledgetree.com/legal/privacy and is incorporated herein by reference (including any changes to KT’s privacy statement made in accordance with its terms).
6.5 Upon termination or expiration of this Agreement, the receiving party will return to the disclosing party or destroy all Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party.
7.1 This Agreement will be effective as of the Effective Date and, unless sooner terminated as herein provided, will continue for the period of time set forth in the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive renewal terms (each renewal term being the same length as the Initial Term) based on KT’s then-current fees, unless either party provides written notice of its intent to terminate this Agreement at least sixty (60) days prior to the end of the Initial Term or applicable renewal term.
7.2 Either party may terminate this Agreement upon thirty (30) days prior written notice if the other party materially breaches any of the terms and conditions of this Agreement and such material breach is not cured within the thirty (30) day period. KT will have the right to suspend your use of or access to the Service in the event KT determines in its sole discretion that you have breached this Agreement. Notwithstanding the foregoing, termination and suspensions relating to late payments by you are covered in Section 7.3 below.
7.3 KT may terminate this Agreement without cause upon at least sixty (60) days prior written notice. In such event, you will be entitled to a refund of any prepaid amounts for Service not delivered.
7.4 The terms provided in Sections 4, 6, 9, 10, 11, 12, 13, and 14 of this Agreement shall survive any termination of this Agreement. In addition, upon termination you shall promptly pay KT all outstanding amounts due to KT under this Agreement. If this Agreement is terminated by KT due to your breach, which you fail to cure after receipt of written notice, or if you terminate this Agreement without cause prior to the end of the then-current term, then all fees unpaid for the remainder of the current term shall become immediately due and payable by you to KT as liquidated damages, without any further demand by KT. The parties acknowledge that KT’s actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of KT’s potential losses.
8.1 The parties are and intend to be independent contractors with respect to the services contemplated hereunder. KT agrees that neither it, its employees nor its contractors shall be considered as having an employee status with you. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created.
8.2 You agree that KT may include you as a customer in promotional material for the Service and/or for KT, including use of your logos, trademarks, trade names and similar identifying material. You can revoke this right by submitting a request via e-mail to KT at [email protected]. Confirmation of such request (via reply e-mail) must be received for this to be effective. Upon receipt of such request, KT will use commercially reasonable efforts to remove any reference to you from such promotional material within 30 days and make no further reference to you. Upon KT’s request, you agree to participate in a mutually agreed press release regarding the relationship established by this Agreement. In addition, you agree from time to time, as reasonably requested by KT and subject to your approval, to participate in KT promotional activities, such as preparation of case studies; participation in media interviews; and preparation of quotes and other marketing materials for KT. Approvals under this Section shall not be unreasonably withheld or delayed by you.
9.1 You and KT each warrant that they have full authority to enter into this Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder. In addition, KT warrants that the Service will substantially conform to the written or electronic documentation provided by KT in connection with the Service. In the event of a breach of this warranty by KT, as your sole and exclusive remedy, KT will, at its expense, use commercially reasonable efforts to cause the Service to conform.
9.2 You represent and warrant that all content and data (“Client Data”) provided by you in connection with your use of the Site and the Service: (i) is owned by you, or you have the full right to provide the Client Data; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. You further represent and warrant that your use of Client Data on the Site or in connection with the Service is not in breach of any covenant or obligation of confidentiality that you have to any other person or entity. You are solely responsible for the Client Data, and acknowledge that KT has no responsibility or intent to review or monitor any Client Data. You hereby grant KT the non-exclusive, royalty-free, worldwide license to use the Client Data solely as necessary to provide the Service for you.
9.3 You shall be solely responsible for your use of the Service, and, except as otherwise agreed in writing by the parties, for maintaining backup copies of the Client Data. You acknowledge and agree that the Service is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.
9.4 The Service will use and connect with content, software, web services, and systems provided by third parties (“Third-Party Systems”). You agree that KT may access and use your account information as required for provisioning and interoperation of such Third Party Systems with the Service, as further described in the instructions for the Service. It is your sole responsibility to maintain and pay for an active subscription to Third-Party Systems used in connection with the Service. KT does not provide any warranties or guarantees regarding the legality, quality, accuracy, integrity, fitness, reliability, or availability of any Third-Party Systems, and you waive any claim against KT with respect to such Third-Party Systems. Your use of and access to Third-Party Systems is subject to the terms published or otherwise made available by the third-party providers of the Third-Party Systems.
9.5 KT does not warrant that the Service will operate without interruption or error-free, or that the Service will be totally secure. Under no circumstances will KT be held liable for any loss of Client Data. To the extent that data is being transmitted over the Internet hereunder, you acknowledge that KT has no control over the functioning of the Internet, and KT makes no representations or warranties of any kind regarding the performance of the Internet. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, KT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
You, at your expense, shall indemnify, defend and hold KT and its officers, directors, owners, employees, and affiliates harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to your use of the Service, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) your breach of any representations, warranties, or covenants in this Agreement, (b) your compliance with applicable laws and regulations, and (c) the Client Data. KT shall provide you with prompt written notice of any such claim.
11.1 The limit of KT’s liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to you or to any third party concerning performance or non-performance by KT, or in any manner related to this Agreement or the Service, for any and all claims shall not exceed in the aggregate the Subscription Fees paid by you to KT hereunder with respect to the Service at issue (excluding any fees or charges relating to approved expenses incurred by KT on behalf of you) during the three (3) months prior to the date that the relevant cause of action accrued.
11.2 In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence.
11.3 The allocations of liability in this Section represent the agreed and bargained for understanding of the parties and KT’s compensation reflects such allocation. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.
12.1 The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration.
12.2 Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Raleigh, NC (USA), under the commercial arbitration rules of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief.
12.3 This Agreement shall be interpreted, construed, and governed by the laws of the State of North Carolina, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
13.1 If you are located in the European Union, you consent to the processing of personal information in the United States by KT in connection with the Service.
13.2 Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
13.3 This Agreement (including the Order Form and any attachments thereto specifically agreed by the parties) constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral communications, understandings or agreements with respect to its subject matter. No waiver of any provision of this Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right. Headings used in this Agreement are for convenience of reference only and shall not be deemed a part of this Agreement.
13.4 You shall have no right to assign this Agreement or any of your obligations hereunder. KT may assign this Agreement and any of its rights hereunder to third parties.
13.5 Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.
13.6 This Agreement does not designate either party as the agent, employee, legal representative, partner or joint venturer of the other party for any purpose whatsoever. There are no intended third-party beneficiaries under this Agreement.
13.7 You agree to comply with all relevant export laws and regulations, including, but not limited to, the U.S. Export Administration Regulations and Executive Orders (“Export Controls“). You warrant that you are not a person, company or destination restricted or prohibited by Export Controls (“Restricted Person“). You will not, directly or indirectly, export, re-export, divert, or transfer the Software or Service, any portion thereof or any materials, items or technology relating to KT’s business or related technical data or any direct product thereof to any Restricted Person.
14.1 By completing the registration process, and/or using the Service, you represent that you are 18 years old or older, are authorized to bind any legal entity that you represent, and agree to all of the terms in this Agreement. You may print or download and keep a copy of this Agreement.
14.2 KT reserves the right, in its sole discretion, to modify this Agreement at any time by posting the changes to the Site. Your continued use of the Site or Service following the posting of such changes constitutes acceptance of those changes. KT will use reasonable commercial efforts to provide notice of material changes to you. KT also reserves the right to modify the Site and the Service at any time without prior notice to you.
14.3 KT will periodically send emails regarding the Service, including general information about KT’s technology and business. You can unsubscribe from email communications using our unsubscribe process.