Terms of Use—Legal Form

If there is any conflict between the language in this “Terms of Use—Legal Form” document and the other "Plain English" version of this document, the language in this “Terms of Use—Legal Form” document will control.

• The words “you” and “your” mean yourself, your organization, all its affiliates and subsidiaries (for example, a school district includes all of its schools), and all people employed by or associated with them.

• The words “Kimono” and “we” and “our” mean Kimono LLC of 35 West Broadway Suite 103, Salt Lake City, Utah and all subsidiaries and affiliates of Kimono LLC actually involved in delivering the Kimono Services to you.

• The phrase “Kimono Services” means the products and services that Kimono makes available through kimonocloud.com and related web sites, including the site itself, the Kimono data and interoperability platform, supported APIs, any other software or services offered by Kimono in connection to any of those, and any component of the foregoing.


1.) Access to Kimono Services

In return for your agreement to these Terms of Use and the Privacy Policy, and continued adherence to the promises in these Terms of Use and the payment of the appropriate fees, Kimono will provide you with access to the Kimono Services in accordance with these Terms of Use and the Privacy Policy. You acknowledge that your organization purchased the Kimono Services based on the feature set available at the time of purchase, and not on anything planned for the future or any oral or written promise regarding functionality. You further acknowledge that you are properly authorized by your organization to access the Kimono Services and view the data that your access rights permit.

There may be multiple levels of access to the Kimono Services and multiple components in them. Not all features will be available to all users, but Kimono promises that you will be entitled to use the features available to other users of the same access level and components.

The Terms of Use apply to free trials, beta testing engagements, production use, and all other uses of the Kimono Services. Data you create or upload during a non-production use may not be available after the use ends if you do not thereafter convert to production use and you are responsible for the resulting unavailability of any such data.

The users from your organization who access or use the Kimono Services must be over 18 years old; while we recognize that many users will upload data relating to children, the Kimono Services are intended only for users who are 18 years of age or older. If you have administrative access, you may not under any circumstances create a user login account for a person who is under 18. Thus the United States Children’s Online Privacy Protection Act (COPPA) does not apply to users of the Kimono Services.

If you are provided with a user name, password or other identification information as part of our security procedures, you must treat such information as confidential and must not disclose it to any other person or entity. We have the right to disable any user name, password or other identification information at any time if, in our opinion, you have violated any provision of these Terms of Use.

You may use the Kimono Services only for lawful purposes and in accordance with these Terms of Use, and must not do any of the following:

• access or use the Kimono Services in any way that violates any applicable law or regulation;

• access or use the Kimono Services for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;

• access or use the Kimono Services for the purpose of bringing an intellectual property infringement or other claim against Kimono;

• access or use the Kimono Services for data that does not belong to your organization (for example, two education agencies sharing a single account;

• use any robot, spider, or other automatic device, process, or means to access the Kimono Services for any purposes, including monitoring or copying any of the content or material available through the Kimono Services;

• Use any manual process to monitor or copy any of the content or material available through the Kimono Services;

• impersonate or attempt to impersonate Kimono, a Kimono employee, another user, or any other person or entity;

• attempt to gain unauthorized access to, interfere with, overburden, damage, or disrupt any parts of the Kimono Services;

• sell, resell, license, sublicense, distribute, rent, or lease the Kimono Services;

• store or transmit infringing, libelous, obscene, or otherwise unlawful or tortious material or material in violation of a third party’s privacy rights;

• store or transmit malicious code;

• disrupt the Kimono Services;

• circumvent contractual or other limits applicable to the Kimono Services or assist others to do so;

• copy the Kimono Services; or

• access or use the Kimono Services in order to build a competitive or replacement product or service.


2.) Your Ownership of Your Data

Kimono collects information about users of the Kimono Services when setting up their accounts (“User Information”). You may also upload or provide other information in connection with your use of the Kimono Services and this information may include, among other information, personally identifiable information about students, staff, and others (“Non-User Information”, which includes, but is not limited to, all data that Kimono’s Privacy Policy designates as either “Student Personal Information” or “Other Personal Information”).

You represent and warrant that you own any and all User Information, Non-User Information, and other data that you upload, provide, or use in connection with the Kimono Services, or otherwise have the right to upload, provide, or use such data, and you will retain ownership or other rights in and to such data. You hereby grant to Kimono any and all licenses necessary to provide you with access to and use of the Kimono Services. Kimono will not share your data with any third-party except to the extent provided in the Privacy Policy.

You agree that all User Information and Non-User Information is governed by our Privacy Policy, and you consent to all actions we take with respect to User Information and Non-User Information consistent with our Privacy Policy.


3.) Other Promises

For most customers, the total of all promises between you and Kimono relating to your membership in the Kimono Services are contained in this Terms of Use document. Some engagements may have additional terms and conditions expressed in writing; those terms are incorporated into these Terms of Use by reference and are legally binding.

Unwritten terms or promises are not legally binding. We’re sorry, but that’s how it has to be.


4.) Changing the Terms of Use

We may revise and update these Terms of Use at any time, in our sole discretion. We will post the updated Terms of Use on the Kimono web site with their effective date and the updated Terms of Use will apply to all access and use of the Kimono Services after the posted effective date. Your continued use of the Kimono Services after the posted effective date means that you accept and agree to the updated Terms of Use even if you fail to read them. You are expected to check the Kimono website frequently so you are aware of any changes, as they are binding on you.

We may also provide you with notice of updates to these Terms of Use using the contact information that you provided when registering to receive the Kimono Services, but we have no obligation to do so and the updated Terms of Use are binding on you regardless of whether we provide you with such notice, as set forth above. In the event that we provide you with notice of the updated Terms of Use using this contact information, you may be asked to click to accept or agree to the updated Terms of Use and, if you refuse to do so or fail to do so within a period designated by Kimono, Kimono will have the right to disable any user name, password or other identification, suspend your access to and use of the Kimono Services and/or terminate this Agreement.


5.) Kimono Support

Kimono promises to provide standard support for the Kimono Services at no additional charge. Standard support is available by telephone and email between 7 AM and 4 PM US Mountain Time, Monday through Friday, except for company holidays. Details for standard and other support services may be set forth in a separate document that, if applicable, we will make available to you upon request.


6.) Operations and Availability

Kimono promises to make commercially reasonable efforts to (a) keep the Kimono Services operational 24 hours per day, every day of the year, except for scheduled maintenance and unavoidable downtime, (b) back up your content and configuration information, and (c) protect the Kimono Services and its components from unauthorized or malicious access. We will notify customers of scheduled maintenance via the Kimono website. Protective safeguards will include measures for preventing access, use, modification or disclosure of your data, applications and configuration.


7.) Education Data and FERPA

Kimono promises to take industry standard, commercially reasonable measures to protect the privacy of data relating to students, staff and other persons associated with your educational efforts, especially personally identifiable information. See our Privacy Policy for details, including Kimono’s status and policy under the United States Family Educational Rights and Privacy Act (FERPA) as amended.


8.) Our Limited Warranty

Kimono warrants, subject to the other provisions of these Terms of Use, that during the time these Terms of Use are in effect (including the requirement that all fees be paid up), the Kimono Services will operate substantially in accordance with the documentation created by Kimono and provided with the Kimono Services. When informed of a difference between the Kimono Services operation and the documentation, as your sole and exclusive remedy, Kimono will use commercially reasonable efforts to correct such difference.

EXCEPT AS SET FORTH HEREIN, THE KIMONO SERVICES AND ANY RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EXCEPT AS SET FORTH HEREIN, KIMONO MAKES NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE KIMONO SERVICES. WITHOUT LIMITING THE FOREGOING, KIMONO DOES NOT REPRESENT OR WARRANT THAT THE KIMONO SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE KIMONO SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE KIMONO SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the Kimono Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE KIMONO SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL AVAILABLE THROUGH THE KIMONO SERVICES.

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


9.) Your Authorized Users

The Kimono Services are intended for use by personnel in public and private schools, school districts, state education agencies, and other organizations that have formally agreed to these Terms of Use. You are responsible for ensuring that all persons who access the Kimono Services through your account are aware of these Terms of Use and comply with them, and you accept responsibility for ensuring that only authorized personnel in your organization use the Kimono Services with your data, and you will notify us promptly if you suspect an unauthorized access or use.


10.) Government End Use

US Federal Government End Use Provisions. If you are with a United States federal agency, be aware that the Kimono Services (with related software and technology) are only available for ultimate federal government end use in accordance with the following: Government technical data and software rights related to the Kimono Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If you or your agency wants more rights than these, contact Kimono to see if mutually acceptable terms can be negotiated and expressed in writing. Kimono is under no obligation to grant such rights absent mutual assent and a written agreement.


11.) Legal Jurisdiction

Kimono is based in the State of Utah in the United States. We provide the Kimono Services for use only by persons located in the United States. We make no claims that the Kimono Services or any of its content is accessible or appropriate outside of the United States. Access to the Kimono Services may not be legal by certain persons or in certain countries. Kimono may explore the use of non-US located servers and laws for its non-US clients and may alter this jurisdiction term in a future update to the Terms of Use or in a client-specific written agreement. In the meantime, you may not access the Kimono Services from outside the United States unless separately agreed to in a writing executed by an authorized representative of Kimono.


11. Registration Data; Password and Account Security

In consideration of your use of the Kimono Services, you agree to (a) enter accurate, current and complete information about you when prompted by any registration forms (“Registration Data”); (b) maintain the secrecy of your password, account, and other identifying information; (c) promptly update the Registration Data and any other information you provide to Kimono whenever it changes, so that it is accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account. You accept responsibility for ensuring that your password is not stolen or misused by another person who is not authorized by your organization’s policy to access the data. You also promise not to try to disable or circumvent any Kimono-related security mechanism. If you believe that your password has been misused or that you have identified a problem in our security, you promise to contact us immediately.


13.) Intellectual Property Ownership

All content, features and functionality (including, without limitation, all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof) comprising the Kimono Services are owned by Kimono or its licensors with all rights reserved, whether such ownership is registered or not, and are protected by U.S. and international copyright, trademark, patent, trade secret, and other intellectual property and proprietary rights laws.

Kimono grants you a limited, non-assignable, non-sublicensable and non-exclusive license, during the term of these Terms of Use, to access and use the Kimono Services to upload, download and distribute your data to third parties designated by you solely in accordance with the documentation created by Kimono and provided with the Kimono Services and these Terms of Use, so long as your fees are paid and you are otherwise in compliance with the Terms of Use. You may not otherwise use, reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit the Kimono Services or any portion thereof.

The Kimono name and all related names, logos, product and service names, designs, and slogans are trademarks of Kimono or its affiliates or licensors. You must not use such marks without the prior written permission of Kimono. All other names, logos, product and service names, designs, and slogans on this website are the trademarks of their respective owners.


14.) Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KIMONO OR ITS MEMBERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING FOR ANY MONETARY, BUSINESS OR DATA LOSS ARISING FROM YOUR USE OF THE KIMONO SERVICES (INCLUDING ANY COMPONENT THEREOF, ANY CONTENT THEREON, OR ANY THIRD PARTY SITE OR CONTENT ACCESSED VIA THE KIMONO SERVICES), EVEN IF KIMONO IS AWARE OF OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, KIMONO’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO KIMONO IN THE TWELVE (12) MONTH PERIOD PRIOR THE EVENT GIVING RISE TO THE LIABILITY, REGARDLESS OF THE CAUSE OR FORM OF ACTION. YOU ACKNOWLEDGE THAT IF NO AMOUNT HAS BEEN PAID TO KIMONO BY YOU, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY (UNLESS OTHERWISE PERMITTED BY LAW); IN SUCH A CASE YOU SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM KIMONO, REGARDLESS OF THE CAUSE OF ACTION.

BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.


15.) Mutual Indemnification

Indemnification by Us. We will defend you against any claim, demand, suit, or proceeding made or brought against you by a third-party alleging that the use of purchased Kimono Services in accordance with these Terms of Use and the documentation provided by Kimono for use with the Kimono Services infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a court-approved settlement of, a Claim Against You, provided you (a) promptly give us written notice of the Claim Against You, (b) give us sole control of the defense and settlement of the Claim Against You (except that we may not settle any Claim Against You unless it unconditionally releases you of all liability), and (c) give us all reasonable assistance, at our expense. If we receive information about an infringement or misappropriation claim related to the Kimono Services, we may in our discretion and at no cost to you (i) modify the Kimono Services so that they no longer infringe or misappropriate, without breaching our limited warranty in Section 8 of these Terms of Use, or (ii) obtain a license for your continued use of the applicable Kimono Services, or (iii) terminate your use of that Kimono Service upon 30 days’ written notice and refund to you any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from non-Kimono content, non-Kimono software, non-Kimono hardware, modification of the Kimono Services by anyone other than Kimono, your access to or use of the Kimono Services in a manner not expressly permitted by the documentation provided for use with the applicable Kimono Services, or your breach of these Terms of Use.

Indemnification by You. You will defend us against any claim, demand, suit, or proceeding made or brought against us by a third party alleging that your data, or your use of any Kimono Services or content in breach of this agreement, infringes or misappropriates such third-party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against Us, provided we (a) promptly give you written notice of the Claim Against Us, (b) give you sole control of the defense and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases us of all liability), and (c) give you all reasonable assistance, at your expense.


16.) Dispute Resolution

If you and Kimono enter into a dispute, the dispute shall be resolved as follows. First, Kimono will attempt to work things out with you (and any other affected parties) through communication. If the dispute cannot be resolved by such interaction, you and Kimono agree to go to mandatory non-binding mediation under the laws of the State of Utah. If mediation is not successful, then either party may file an action in a court of the United States as follows: if you file the action, then you agree that you must file in the State or Federal courts located in Salt Lake City, Utah, and that jurisdiction and venue will be proper in those courts, while if we file the action, then we agree that we must file in the US Federal or State courts nearest to your organization’s address as recorded in the Services registration information, and we agree that jurisdiction and venue will be proper in those courts. You and we agree that in any event the laws of the State of Utah will govern without regard to choice or conflicts of law rules.


17.) Ideas and Suggestions

If you suggest an idea to us, you hereby assign an undivided 50% ownership interest in and to such idea to us, including any copyright, trademark, patent, or other intellectual property rights therein, or if you legally cannot assign such ownership to us, then you hereby grant us a perpetutal, irrevocable, fully paid-up, royalty-free, sublicensable, transferable, worldwide license to make, use, sell, offer to sell, import, reproduce, distribute, perform, display, prepare derivative works, and otherwise use, commercialize, and exploit such idea. You will retain the ability to do whatever you want to do with that idea without any payment or other obligation to us, and we will have the same rights without obligation to you.


18.) Cancellation / Termination

You can cancel your subscription to the Kimono Services at any time by requesting that your account be deactivated. If you choose to cancel, we are not obligated to return any moneys paid but we may choose to do so in our sole discretion.

We can cancel your subscription to the Kimono Services at any time by deactivating your account with 30 days’ notice; in such a case we must refund the pro-rated balance owing from what you have paid us. We can deactivate with no notice if, in our sole judgment, we reasonably believe that a significant harm to a person or property is likely to occur or is occurring, or if we have reasonable evidence that persons in your organization have involved the Kimono Services in violations of the law. We may also immediately terminate or suspend your access to all or part of the Kimono Services if, in our opinion, you are in violation of these Terms of Use.

The Terms in the following sections will survive cancellation: Your Ownership of Your Data, Education Data and FERPA, Legal Jurisdiction, Intellectual Property Ownership, Limitation of Liability, Mutual Indemnification, Dispute Resolution, Ideas and Suggestions, and Other Legal Terms.


19.) Monitoring and Enforcement

We have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Kimono Services. YOU WAIVE AND HOLD HARMLESS KIMONO AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we cannot review all material before it is uploaded to the Kimono Services, and cannot ensure prompt removal of material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.


20.) Other Legal Terms

Your organization and Kimono are independently contracting for this relationship. There is no partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the two.

If we have to notify you of something, we will use the email address you provided at registration, or we’ll put it on the Kimono website. This applies even if the notification is required by law. If you have to notify us of something, send it to one of the “@kimonocloud.com” email addresses on our website or start a support case for it on our support page.

If either you or Kimono chooses to not exercise or enforce a legal right under these Terms of Use or applicable law, that won’t be a general waiver of that right; all rights will still be available to both parties.

If a court of competent jurisdiction invalidates any provision of these Terms, all the other Terms will remain in effect.

Neither you nor Kimono will be liable for failed or delayed performance caused by something beyond reasonable control—fire, flood, governmental action (of an entity other than you), acts of terrorism, labor strike, power failure, Internet outage, earthquake, or act of God. Both parties will attempt to establish contact as soon as possible to discuss how to proceed afterwards.

Unless expressly modified by a separate written document executed by authorized representatives of each party, these Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and Kimono regarding the Kimono Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Kimono Services.


Copying These Terms Themselves

If you’re with another vendor or website and want to use these terms as a starting point for your own Terms of Use or Terms of Service document, you may (see below for details). Much of our document came from, or was inspired by, Terms of Service documents used by Salesforce, Heroku, and Facebook, and we suggest you also look at them. Have an attorney write, or at least review, your Terms of Use before you deploy them. You’ll thank yourself later.

The text of this Terms of Use document is copyright © 2013-2018 by Kimono LLC. All rights reserved.

A license is hereby granted to anyone, anywhere, to use, copy, modify, and distribute these Terms of Use in whole or in part, so long as Kimono’s name, address, email address and other identifiable information in the body of the terms is removed or replaced with another organization’s information. We’d appreciate it if you mention us somewhere, but it’s not required.

Version 1.0; 96363728.3 0065244-00002; last modified 5/18/2018

Read Kimono's Privacy Policy.