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These Kantiv Customer Terms (SaaS), together with any and all Order Forms (collectively, these "Terms"), constitute a binding contract between you ("Customer," "you," or "your") and Kantiv Inc. a Delaware corporation ("Kantiv," "we," or "us"). These Terms govern your and your Users' access to and use of the Kantiv Product.
THESE TERMS TAKE EFFECT ON THE EARLIER OF THE DATE ON WHICH YOU EXECUTE AN ORDER OR FIRST ACCESS THE KANTIV PRODUCT (the "Effective Date"). IN CONNECTION THEREWITH, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS AND, IF ENTERING INTO THESE TERMS FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM.
IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE KANTIV PRODUCT.
The following, when used in these Terms, will have the below meanings:
"Affiliates" means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists, wherein "Control" means beneficial ownership of 50% or more of the voting power or equity in an entity or power to direct an entity's management.
"Confidential Information" means any information including, without limitation, trade secrets, disclosed by either party, whether or not marked or otherwise designated as confidential or proprietary, that should be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, "Confidential Information" will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.
"Customer Data" means any data, content or materials that Customer (including its Users) submits to its Kantiv Product account(s).
"Documentation" means Kantiv's standard usage documentation for the Kantiv Product currently available at https://www.kantiv.com/.
"Kantiv Product" means a SaaS and artificial intelligence (AI)-based sales and marketing platform provided by Kantiv and subscribed to by Customer hereunder, as may be further described in an applicable Order Form.
"Order Form" means an order form, quote or other similar document that sets forth the specific Kantiv Product to which Customer is subscribing, pricing therefore (including in relation to overages), and subscription term, and that references these Terms and is mutually executed by the parties.
"Third Party Platform" means any product, add-on or platform not provided by Kantiv that Customer elects to use with the Kantiv Product.
"User" means anyone that Customer allows to use its accounts for the Kantiv Product, consisting of (a) Customer's employees and contractors (solely for purposes of providing services to Customer) and (b) others if expressly permitted in the Documentation or an Order Form.
Kantiv will make the Kantiv Product available to Customer pursuant to these Terms and the applicable Order Form, and hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free right to access and use the Kantiv Product solely for its internal business purposes during the applicable subscription term. Customer may permit Users to use the Kantiv Product on its behalf. Customer is responsible for provisioning and managing its User accounts, for its Users' actions through the Kantiv Product and for their compliance with these Terms and Customer shall be liable for Users' use of the Kantiv Product.
Kantiv will maintain a security program materially in accordance with generally accepted industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. Kantiv will maintain the administrative, physical and technical safeguards described in the Kantiv security page located at https://trust.kantiv.com (the "Security Page").
In the event Kantiv processes personal data (as defined in applicable data protection or data privacy laws), the parties agree to the terms set forth in Kantiv's Data Processing Agreement located at https://www.kantiv.com/data-processing-agreement (the "DPA"), the terms of which shall be incorporated by reference herein. To the extent there is any conflict between the terms of the DPA and these Terms, the terms and conditions set forth in the DPA shall control with respect to the processing of personal data.
Any personal data collected through the Kantiv Product shall be processed by Kantiv in compliance in all material respects with its privacy policy, available at https://www.kantiv.com/privacy-policy ("Privacy Policy") and the collection of cookies by Kantiv, if any, shall be governed by Kantiv's cookie policy located at https://www.kantiv.com/cookies-policy ("Cookie Policy").
Customer acknowledges that Kantiv's provision of the Kantiv Product is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner.
Customer will: (i) provide all reasonably necessary cooperation in relation to this Agreement; (ii) prevent unauthorized access to or use of the Kantiv Product and notify Kantiv promptly of any such unauthorized access or use; (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Kantiv Product; (iv) comply with all applicable laws and regulations regarding its performance hereunder; and (v) not upload any information that contains any back-door, time-bomb, Trojan horse, virus, worm or any other malicious code.
Customer will be responsible for the content of all communications sent by its Users via the Kantiv Product. Customer represents and warrants that it will not use the Kantiv Product to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could constitute a criminal offense.
Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Kantiv and these Terms will apply to each such Order Form as if such Affiliate were a signatory thereto. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.
Customer will pay Kantiv the fees set forth in the applicable Order Form within thirty (30) days of the date of receipt of the applicable invoice (the "Payment Period"), unless a specific date for payment is set forth in such Order Form. Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. Except as otherwise set forth in an applicable Order Form, the fees for any renewal term shall be subject to an increase of ten percent (10%) of the then-current fees. Notwithstanding the foregoing, Kantiv reserves the right to increase fees for any renewal term by more than ten percent (10%) by providing Customer with written notice at least sixty (60) days prior to the end of the then-current subscription term.
Kantiv may suspend access to the Kantiv Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. All late payments shall accrue interest at a rate equal to 1.5% per month, or the highest rate permitted under applicable law, whichever is lower. Kantiv reserves the right to recover from Customer all costs of collection including, without limitation, reasonable attorneys' fees and costs.
All amounts payable hereunder are exclusive of any sales, use, value added and other taxes or duties (collectively, "Taxes"). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Kantiv. Customer will not withhold any Taxes from any amounts due to Kantiv.
As between the parties, Kantiv exclusively owns all right, title and interest in and to the Kantiv Product, System Data and Kantiv's Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, output produced specifically for Customer via the use of the Kantiv Product ("Output") and Customer's Confidential Information. "System Data" means data collected by Kantiv regarding the Kantiv Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Kantiv Product.
Customer may from time to time provide Kantiv suggestions or comments for enhancements or improvements, new features or functionality or other feedback ("Feedback") with respect to the Kantiv Product. Kantiv will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided "AS IS" and Kantiv will not publicly identify Customer as the source of Feedback without Customer's permission.
Each receiving party agrees that it will: (a) treat the Confidential Information of disclosing party with the same degree of care it uses to protect its own Confidential Information of similar character and importance, but in no event with less than a commercially reasonable degree of care and (b) use the Confidential Information of the disclosing party solely in accordance with the provisions of these Terms and it will not disclose the same to any third party without the disclosing party's prior written consent. However, the receiving party may disclose such Confidential Information (i) to its employees and other representatives who have a need to know; and (ii) as required by law.
Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive the source code underlying the Kantiv Product; (b) attempt to probe, scan or test the vulnerability of the Kantiv Product or breach the security or authentication measures of the Kantiv Product without proper authorization; (c) use or access the Kantiv Product to develop a product or service that is competitive with Kantiv's products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Kantiv Product; or (e) otherwise use the Kantiv Product in violation of applicable law or outside the scope expressly permitted hereunder.
Each party acknowledges and agrees that an actual or threatened breach of the provisions of Sections 5.1 or 5.2 will give rise to irreparable harm for which monetary damages would not be an adequate remedy. Therefore, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief from any court of competent jurisdiction.
Kantiv warrants that the Kantiv Product will perform in all material respects as described in the Documentation and Kantiv will not materially decrease the overall functionality of the Kantiv Product during the applicable subscription term (the "Performance Warranty"). Kantiv will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer in writing within thirty (30) days. If Kantiv fails to do so, then either party may terminate the applicable Order Form, in which case Kantiv will provide Customer a pro rata refund of any prepaid unused subscription fees.
Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Kantiv to use the same as contemplated hereunder.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, KANTIV DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT (A) OUTPUT IS AUTOMATICALLY GENERATED USING AI TECHNOLOGIES, DOES NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL, AND IS PROVIDED "AS IS" WITHOUT ANY WARRANTIES; (B) CUSTOMER IS RESPONSIBLE FOR REVIEWING THE ACCURACY AND APPROPRIATENESS OF OUTPUT; AND (C) KANTIV WILL HAVE NO, AND CUSTOMER HEREBY RELEASES KANTIV FROM, ANY AND ALL LIABILITY WITH RESPECT TO OUTPUT. KANTIV IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF.
From time to time, Customer may have access to free accounts, trial or pilot use, pre-release, alpha or beta versions or features or other non-paid products or services (collectively, "No-Charge Products") offered by Kantiv. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KANTIV DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS.
Kantiv will defend Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Kantiv Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer in connection with any such Claim; provided that (a) Customer will promptly notify Kantiv of such Claim, (b) Kantiv will have the sole and exclusive authority to defend and/or settle any such Claim and (c) Customer reasonably cooperates with Kantiv in connection therewith.
Customer will defend Kantiv against any Claim made or brought against Kantiv by a third party arising out of any Excluded Claims, and Customer will indemnify Kantiv for any damages finally awarded against Kantiv in connection with any such Claim; provided that (a) Kantiv will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim and (c) Kantiv reasonably cooperates with Customer in connection therewith.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THESE TERMS FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER'S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO THE CLAIM.
The term of these Terms will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order Form will begin on the Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
Each party may terminate these Terms upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate these Terms or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of these Terms and fails to remedy such breach within thirty (30) days after written notice or (b) the other party is subject to voluntary or involuntary liquidation or similar insolvency proceedings not dismissed within sixty (60) days.
Upon expiration or termination of these Terms (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy any Confidential Information of such disclosing party in its possession or control.
Upon Customer's written request made on or prior to expiration or termination of the applicable Order Form, Kantiv will give Customer limited access to the Kantiv Product for a period of up to thirty (30) days after such expiration or termination, at no additional cost, solely for purposes of retrieving Customer Data. Subject to such retrieval period and Kantiv's legal obligations, Kantiv has no obligation to maintain or provide any Customer Data and will, unless legally prohibited, delete Customer Data after such expiration or termination.
Kantiv will, during the term of these Terms, maintain in force the following insurance coverage at its own cost and expense: (a) Statutory Workers Compensation and Employer's Liability with a minimum limit of $1,000,000 per occurrence; (b) Commercial General Liability with a minimum combined single limit of $1,000,000 per occurrence; and (c) Professional Errors and Omissions (including Cyber Liability) coverage with limits of not less than $2,000,000 per claim or per occurrence/$2,000,000 in the aggregate.
Kantiv may not refer to Customer's name and trademarks in Kantiv's marketing materials, its website or any other publicity without Customer's prior written consent (which may be by email), which consent shall not be unreasonably withheld, conditioned or delayed.
Neither party may assign these Terms without the prior written consent of the other party, except that either party may assign these Terms without consent to a successor in connection with a change in control, merger, acquisition, or sale of all or substantially all of its assets or business to which these Terms relate. Any attempted assignment in violation of this clause will be null and void.
No amendment or modification to these Terms, nor any waiver of any rights hereunder, will be effective unless assented to in a writing signed by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given.
Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto. Neither party will have the authority to obligate or bind the other in any manner.
If a court of competent jurisdiction determines that any provision of these Terms is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of these Terms will remain in full force and effect.
These Terms will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. The parties agree that any legal action or proceeding relating to these Terms shall be instituted in the state or federal courts located in San Diego County, California.
Any notice required or permitted to be given hereunder will be given in writing (including via email) by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address or email address set forth in the Order Form.
These Terms and any Order Form comprise the entire agreement between Customer and Kantiv with respect to the subject matter hereof, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written).
Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to causes beyond its reasonable control ("Force Majeure Event"), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war, or cyber attacks. In the event that the party impacted by a Force Majeure Event is unable to continue performance of its obligations for a period of ninety (90) consecutive calendar days, either party may thereafter terminate these Terms upon written notice to the other party.
For purposes hereof, “including” means “including without limitation”.