• 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
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 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.
• 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
3.) Other Promises
Unwritten terms or promises are not legally binding. We’re sorry, but that’s how it has to be.
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
8.) Our Limited Warranty
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
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
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.
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 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.
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 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.
Copying These Terms Themselves
Version 1.0; 96363728.3 0065244-00002; last modified 5/18/2018