Terms of Service
Last Updated: April 25th, 2019
By using Kimonus, you are agreeing to these Terms. If you do not agree to these Terms, do not use Kimonus. If you are using Kimonus on behalf of an organization such as your employer, you are agreeing to these Terms on behalf of that organization, and represent and warrant that you have the authority to agree to these terms on the organization’s behalf. In that case, “you” and “your” will refer to that organization.
Kimonus only offers accounts and services on behalf of business entities and does not offer personal accounts on behalf of individuals. You understand and agree that the Service may include certain communications from Kimonus, such as service announcements and administrative messages, and that these communications are considered part of Kimonus subscription and that you will not be able to opt out of receiving them. You understand and agree that the Service is provided “as is” and that Kimonus assumes no responsibility for the timeliness, deletion, mis-delivery of or failure to store any user content or settings. You are responsible for obtaining access to the Service, which access may involve third-party fees (ISP for example). You are responsible for those fees.
You may not access the service for purpose of monitoring its performance, availability, or functionality, or for any other benchmarking or competitive purposes, without Kimonus’s prior written consent. You may not access the service if you are a direct competitor of Kimonus’s except with Kimonus’s prior written consent.
We may periodically revise the Terms without any direct notification. The current version of our Terms will always be posted on our Terms page, so please check back regularly. By continuing to use Kimonus after revisions become effective, you are agreeing to the revised Terms. If you do not agree to the revised Terms, please stop using Kimonus.
Your Kimonus Account
To use Kimonus, you’ll need to create an account, either via Kimonus or through a third-party service. In the latter case, personal information you provided to that third party, such as your name, email address and other information your privacy settings on that service allow us to access, will be used to create your Kimonus account.
You are responsible for safeguarding your Kimonus login credentials. You are responsible for activity on your account, whether or not you authorized that activity. You should immediately notify us of any unauthorized use of your account.
By using Kimonus, you provide us with text, images, file attachments, and other information (“your content”). You retain full ownership of your content – what belongs to you stays yours.
You can remove your content by deleting it. However, in certain instances, some of your content may not be completely removed (when your data is shared with someone else, for example). We are not responsible or liable for the removal or deletion of any of your content, or the failure to remove or delete such content.
You are solely responsible for your content and indicate that you own or have the necessary rights to all of your content, and that use of your content does not infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Your Use of Kimonus
Kimonus Inc is owned by BrainWise SRL and its licensors and is protected by United States, European and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
You may only use Kimonus as permitted by law, including all applicable federal, state, local or international laws and regulations. Do not, for example:
- Use any engine, software, tool, agent, device, mechanism or the like to access, search, or download intellectual property from Kimonus, or use Kimonus in any way other than through our publicly supported interfaces;
- Access, tamper with, or use non-public areas of Kimonus, Kimonus’s computer systems, or the technical delivery systems of Kimonus’s providers;
- Probe, scan, or test the vulnerability of any Kimonus system or network or breach any security or authentication measures;
- Decipher, decompile, disassemble or reverse engineer any of the software used to provide Kimonus;
- Plant malware or use Kimonus to distribute malware;
- Violate the privacy of others;
- Violate any applicable law or regulation;
- Impersonate or misrepresent your affiliation with any person or entity; or post or transmit anything that is fraudulent or misleading;
- Send unsolicited communications, promotions, advertisements or spam or otherwise infringe on others’ rights;
- Interfere with the access of any user, host or network, including introducing any virus to, overloading, flooding, spamming, or mail-bombing Kimonus, or introducing any other material or content which is malicious or technologically harmful;
- Attack Kimonus via a denial-of-service attack or a distributed denial-of-service attack; or otherwise attempt to interfere with the proper working of Kimonus;
- Attempt any of the above, or encourage or enable any other individual to do any of the above.
We have the right to investigate violations of these Terms and may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Confidential Information. From time to time, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”) non-public, proprietary, and confidential information of the Disclosing Party (“Confidential Information”). Confidential Information includes any information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including non-public business, product, technology and marketing information (“Confidential Information”). Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this confidentiality section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in the Receiving Party’s possession prior to the Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by the Receiving Party without using any of the Disclosing Party Confidential Information.
Protection and Use of Confidential Information. The Receiving Party shall: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms; and (c) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s service providers or financial/legal advisors who need to know the Confidential Information and are bound to confidentiality obligations at least as restrictive as those in these Terms.
Compelled Access or Disclosure. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy.
We respect the intellectual property rights of others, and we expect you to do the same.
It is our policy to terminate the Kimonus account of anyone who repeatedly infringes the copyright or intellectual property rights of others. In accordance with the Digital Millennium Copyright Act of 1998, Kimonus will respond expeditiously to claims of copyright infringement committed using Kimonus as reported to our Designated Copyright Agent.
If you believe that any materials you or others access via the Services infringe your copyright or other intellectual property rights (e.g., trademark infringement or right of publicity), please contact our Copyright Agent at the address below and provide the following information:
- Your full legal name and electronic or physical signature
- A description of the copyrighted work or other interest that you believe has been infringed;
- Enough information to properly identify and locate that content (including, at a minimum, the relevant URL)
- Contact information, including your address, telephone number, and email address
- The following statements in the body of notice:
- “I hereby state that I have not authorized the challenged use, and I have a good-faith belief that the challenged use is not authorized by law.”
- “I hereby state under penalty of perjury that all of the information in the notification is accurate and that I am the owner of the IP or authorized to act on behalf of the owner of the IP.”
Upon receipt of notice as described above, we will seek to confirm the existence of the IP on Kimonus and take whatever action, in its sole discretion, we deem appropriate.
Please direct inquiries regarding infringement issues by email to firstname.lastname@example.org
We may terminate or modify your access to and use of Kimonus, at our sole discretion, at any time and without notice to you, for example, if you are not complying with these Terms, or if you use Kimonus in any way that would cause us legal liability or disrupt others’ use of Kimonus.
Likewise, you may cancel your account at any time, although we will be sorry to see you go.
If we suspend or terminate your use of Kimonus, we will try to let you know in advance and help you retrieve data, though there may be cases (for example, flagrantly violating these Terms) where we may suspend immediately.
Unless otherwise specified, Kimonus may use Customer’s name, logo, and marks (including marks on Customer Properties) to identify Customer as a Kimonus customer on Kimonus’s website and other marketing materials.
KIMONUS IS PROVIDED “AS IS,” AT YOUR OWN RISK, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Kimonus Inc. will have no responsibility for any harm to your computer system, loss or corruption of data, or other harm that results from your access to or use of Kimonus. Some states do not allow the types of disclaimers in this paragraph, so they may not apply to you.
You will hold harmless and indemnify Kimonus Inc. and its affiliates, officers, directors, employees, contractors, agents, licensors, and suppliers from and against any claim, suit or action arising from or related to the use of Kimonus or violation of these Terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
Limitation of Liability
(A) TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL KIMONUS INC., ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, PROFIT, DATA, GOOD WILL, SERVICE INTERRUPTIONS, COMPUTER DAMAGE OR SYSTEM FAILURE), REGARDLESS OF LEGAL THEORY, WHETHER OR NOT KIMONUS INC. HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (B) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO KIMONUS MORE THAN THE GREATER OF $20 OR THE AMOUNTS PAID BY YOU TO KIMONUS INC. FOR THE PAST THREE MONTHS OF THE SERVICES IN QUESTION. Some states do not allow the types of limitations in this paragraph. If you are in one of these jurisdictions, these limitations may not apply to you.
Terms of Paid Subscriptions
If you purchase a subscription to the Services via the Kimonus website (“Online Subscription”) or pursuant to any ordering document (“Order Form Subscription”), the following terms of subscription will apply to you:
Subscription Term. The Services are provided on a subscription basis for a term defined in the Online Subscription, or on the Order Form Subscription, as applicable (each, a “Subscription Term”).
Cancellation. You may cancel your subscription at any time; however, you are responsible for advance payment of the entire Subscription Term. Fees are non-refundable based on the Subscription Term purchased and not actual usage. Payment obligations for the Subscription Term to which you subscribe are noncancelable.
Renewals. For Online Subscriptions, each Subscription Term will automatically renew for an additional Subscription Term equal in length to the original Subscription Term. Online Subscriptions can be canceled directly at https://kimonus.com. For Order Form Subscriptions, each Subscription Term will automatically renew for an additional Subscription Term equal in length to the original Subscription Term, unless cancellation is requested in writing (including by email to email@example.com) at least thirty (30) days prior to the expiration of the then-current Subscription Term.
Billing and Payment. If you purchase a subscription to the Services via credit card, debit card or other payment cards (collectively, “Credit Card”), you hereby authorize Kimonus (or its designee) to automatically charge your Credit Card in accordance with the applicable Online Subscription or Order Form Subscription. You acknowledge that certain Credit Cards may charge you foreign transaction fees or other charges. If your payment is not successfully settled for any reason, you remain responsible for any amounts not remitted to Kimonus. Each net new user beyond the scope of the initial Online Subscription or Order Form Subscription, as applicable, will incur an additional charge and will be included in a true-up invoice or charged automatically via Credit Card, as applicable.
Late Payments. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection). Kimonus may terminate your subscription if you fail to promptly pay any outstanding fees.
Taxes and Fees. You are responsible for all sales, use, value added or other taxes of any kind, other than taxes based on Kimonus’s net income. You are also responsible for any payment-related fees such as wire transfer or Credit Card processing fees.
Expenses. You are responsible for all fees or expenses related to accessing or using the Services that are extrinsic to the Services. This includes, without limitation, your own internet service provider fees.
The Kimonus and Kimonus logo trademarks and service marks and other Kimonus logos and product and service names are trademarks of Kimonus.
No resale of Service
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service unless you otherwise have a written agreement with Kimonus which specifically grants you such right(s).
General practices regarding use and storage
You acknowledge that Kimonus may establish general practices and limits concerning use of the service, including without limitation the maximum number of days that Content will be retained by the service, the maximum number of email messages that may be sent from or received by an account on the service, the maximum size of any email message that may be sent from or received by an account on the service, the maximum disk space that will be allotted on Kimonus’s servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access the service in a given period of time. You agree that Kimonus has no responsibility or liability for the deletion or failure to store any Content and other communications maintained or transmitted by the service. You acknowledge that Kimonus reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Kimonus reserves the right to modify these general practices and limits from time to time.
Modifications to service
Kimonus reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the service (or any part thereof) with or without notice. You agree that Kimonus shall not be liable to you or to any third party for any modification, suspension or discontinuance of the service.
These Terms and any action related thereto will be governed by the laws of the State of Florida without regard to its conflict of law’s provisions. All claims arising out of or relating to these terms or the services or software must be litigated exclusively in the state and federal courts located in the Miami-Dade County of Florida and each of the parties hereto waives any objection to jurisdiction and venue in such courts. These Terms constitute the entire and exclusive agreement between you and Kimonus Inc, and supersede and replace any other agreements, terms and conditions. These Terms create no third-party beneficiary rights. Kimonus Inc.’s failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Agreement will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights in these Terms without our written consent, and any such attempt will be null and have no effect. Kimonus Inc. may freely assign or transfer these terms without restriction. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms, please contact us at firstname.lastname@example.org.