Last updated May 15, 2019
BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND NOTICES CONTAINED IN THIS AGREEMENT JUST AS IF YOU HAD SIGNED THIS AGREEMENT.
Subject to the terms and conditions of this Agreement, You may access and use the Services through the Websites or the App for the Term (as defined in Section 3) below. The Services may be used only in connection with the processing of Your information and such data, and not the information or data of any third party. You may not use the Services in any way that: (i) does not comply with the terms of this Agreement, as amended by Company from time to time, or any other terms, rules, or guidelines provided by Company concerning your use of the Services; (ii) may subject Company to unfavorable regulatory action, violate any law, infringe upon the rights of third parties, or subject Company to liability for any reason; or (iii) might adversely affect Company’s public image, reputation or goodwill. All right, title and interest in and to the Services are owned and retained exclusively by Company. Except for the rights and licenses expressly provided herein, all rights, title and interest in the Services, including all corrections, enhancements and modifications thereof, are reserved by Company. You are responsible for your employees, contractors and agents compliance with the terms and conditions of this Agreement.YOU ARE SOLELY RESPONSIBLE FOR USING THE SERVICES IN A MANNER THAT COMPLIES WITH LAWS, RULES, DIRECTIVES, REGULATIONS AND OTHER REQUIREMENTS OF GOVERNMENT AND REGULATORY AUTHORITIES, INCLUDING, WITHOUT LIMITATION, EMPLOYMENT AND PRIVACY RELATED LAWS (COLLECTIVELY, “LAWS”). YOU SHALL NOT USE THE SERVICES IN ANY MANNER THAT VIOLATES LAWS.**
As part of the Services, it may be required that You install a software agent obtained from the Websites on each of your computers (the “Software”). Subject to the terms and conditions of this Agreement, Company grants You a nonexclusive, non-transferable license to use the Software (in object code only) and the corresponding user documentation (“Documentation”, Software and Documentation referred to together as the “Product”) as described herein. The term “Product” shall include any corrections, enhancements, updates or other modifications, including any custom modifications, to the Software and Documentation delivered to You. The Product shall be used solely by You in connection with Your use of the Services as is permitted herein. All rights not expressly granted herein are retained by Company. Except as allowed under this Agreement, You agree not to reproduce, copy, modify, translate, reverse engineer, disassemble, de-compile or otherwise attempt, or permit others to attempt, to discover the source code of the Software, in whole or in part. You agree not to use the Software in any way to design or develop a competing software product. You shall not sublicense, distribute or otherwise make the Software available to a third party. You shall not permit any parent, subsidiaries, affiliated entities or third parties to use the Software and Documentation without the prior written permission of Company.
Company currently offers several Service Plans with varying features and fee schedules, as well as multiple add-on services that User can choose to opt into for additional fees, unless otherwise stated. Before User may begin to use the Services, User will be asked to select a Service Plan from those detailed at https://kamsa.co or https://cultivatepeople.co. User may request to change User’s Service Plan via the Platform.If User chooses to upgrade from User’s current Service Plan (the “Current Plan”) to a more expensive Service Plan (the “New Upgrade Plan”), then such upgrade will promptly go into effect, and User will begin receiving access to the features and Services available under the New Upgrade Plan at the time of such upgrade. The fee schedule for the New Upgrade Plan will be applied to User’s Service Plan charge for the calendar month in which User upgraded and for each calendar month thereafter for so long as User is subscribed to the New Upgrade Plan.If User chooses to downgrade from User’s Current Plan to a less expensive Service Plan (the “New Downgrade Plan”), then the downgrade will not go into effect until the beginning of the calendar month following the calendar month in which User elected to downgrade (the “Downgrade Election Month”). User will still receive access to the features and Services available with User’s Current Plan until the end of the Downgrade Election Month. After the Downgrade Election Month, User will lose access to some of the features and Services available with User’s Current Plan and will only have access to the features and Services available under User’s New Downgrade Plan. The fee schedule for User’s Current Plan will be applied to User’s Service Plan charge for the Downgrade Election Month, and the fee schedule for the New Downgrade Plan will be applied to User’s Service Plan charge for the calendar month following the Downgrade Election Month and for each calendar month thereafter for so long as User is subscribed to the New Downgrade Plan.
4. Term and Termination
This Agreement allows you to access and use the Services for the term You selected by you when you purchased access to the Services, unless earlier terminates as provided in this Agreement (the “Term”). Company reserves the right to terminate Your access to the Services, without notice and in its sole discretion, if Company believes that Your use of the Services does not comply with the terms of this Agreement including payment of applicable fees.
You represent that the information provided by You in the online registration form is accurate, complete and current, and You agree to update that information promptly if there is any change.
You are responsible for keeping Your passwords secret and confidential. You agree that You are responsible for any communications, transactions or use of the Services, which are made using Your passwords, together with any fees, charges, liabilities or obligation which may result from such use. You are responsible for changing any of Your passwords that have been stolen or otherwise compromised, or are being misused.
Prices for the Services are as set forth when you purchased access to the Services and shall be payable in accordance with Company’s then-current terms of payment.We reserve the right to change service fees upon thirty (30) days notice. Your continued use of the Services after such modifications will be deemed to be Your conclusive acceptance of such changes. If You are dissatisfied as a result of such changes, Your only recourse is to terminate your access to the Services.All fees paid to Company are nonrefundable. You are responsible for paying all sales, use, excise, ad valorem and other taxes (excluding taxes based on the net income of Company) arising out of Your use of or access to the Services. If Company does not receive payment when due, Company may immediately terminate Your access to the Services.Unless otherwise stated, Company’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchase of access to the Services hereunder. If Company has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount will be invoiced to and paid by You, unless You provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on Company’s income, property and employees.
You acknowledge and agree that all right, title and interest in and to the information, data, software, photographs, graphics, videos and other material (collectively the “Content”) provided by Company in connection with the Services, including, without limitation, any copyrights in or to the Content, belong to Company and its content providers, and You will not assert any claims to the contrary. You may not: (i) copy, edit, alter, modify or prepare any derivative works of the Content or any portion thereof; (ii) remove or alter any credits, notices (including, without limitation, copyright, trademark and service mark notices), or logos which are included as a part of the Services; or (iii) resell, sublicense or otherwise transfer, distribute or make available to others all or any portion of the Content in any form.
9. User Materials
(a) As part of the Services, You may create or provide, or the Services may collect information, data and other materials in electronic format which will be utilized through the Services (collectively “User Materials”). User Materials includes, without limitation, information that You provide in the online registration form. You represent that You have obtained all necessary third party rights, including, without limitation, copyrights, for any User Materials that belong to third parties. You acknowledge that by providing any User Materials to Company, You authorize Company to use User Materials for the purpose of facilitating Your use of the Services, including, without limitation, registering You to use the Services, billing You for the Services, permitting You to access your User Materials (as defined below), personalizing communications to You, and generally to improve the Services.
(b) Company will have the right, in its discretion, to store User Materials or delete User Materials following the expiration or termination of the Services. Company will use reasonable efforts to notify You before it deletes any User Materials, but Company shall not be responsible if it fails to do so or if You do not receive Company’s notification. While Company will implement commercially reasonably security measures to maintain the security of User Materials, You acknowledge that, notwithstanding the security features of the Services, no product, hardware, software or service can provide a completely secure mechanism of electronic transmission or communication and that there are persons and entities, including enterprises, governments and quasi-governmental actors, as well as technologies, that may attempt to breach any electronic security measure. Company will not be liable to You for any disclosures of Users Materials to third parties or any other breaches of security affecting You or User Materials.
CultivatePeople makes no representations or warranties about the platform’s uptime, availability, or permissibility in any particular geographic location. From time to time, scheduled system maintenance or emergency maintenance may occur, and during such maintenance periods, the platform may be inaccessible or unavailable, with or without notice to User.
Company hereby warrants that during the term of this Agreement, the Services will perform, in all material respects, in accordance with its then-current published functional specifications. In the event of any failure of the Services to perform in a material respect to such specifications Company will, as Your sole and exclusive remedy for such failure, repair the Services. EXCEPT FOR THE FOREGOING WARRANTY, THE USE OF THE SERVICES AND THE SOFTWARE IS PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND COMPANY HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY NEITHER WARRANTS THAT THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF THE SOFTWARE OR OTHER CONTENT PROVIDED THROUGH THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY, ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. ANY USE OF THE SERVICES IS AT YOUR OWN RISK.
COMPANY WILL NOT BE LIABLE FOR ANY, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST PROFITS OR BUSINESS INTERRUPTION), WHETHER ARISING FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAILS, ERRORS, DEFECTS, VIRUSES OR OTHER MALICIOUS CODE, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE LIABILITY OF COMPANY TO YOU FOR ALL CLAIMS IN THE AGGREGATE ARISING OUT OF THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, WHETHER ARISING IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY YOU HEREUNDER IN THE ONE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
You agree to defend, indemnify and hold harmless Company, its officers, directors, employees, contractors and suppliers and licensors, from and against any and all loss, claim or liability (including without limitation all attorneys’ fees and expenses) which they may incur in connection with: (a) Your breach of this Agreement; (b) Your use of the Services; or (c) any User Materials.
Company will have the right to modify and restate the terms and conditions of this Agreement, and such modification(s) will be effective immediately upon Company sending you notice of the modification. Your continued use of the Services after such modifications will be deemed to be Your conclusive acceptance of all modifications to this Agreement. If You are dissatisfied as a result of such modification(s), Your only recourse is to terminate your access to the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the choice of law provisions thereof.
Company and You agree that any claim, dispute or controversy, whether in contract, tort (intentional or otherwise), whether pre-existing, present or future, and including constitutional, statutory, common law, regulatory and equitable claims in any way arising out of or relating to: (1) the Services; or (2) the relationship between Company and You, including the validity, enforceability or scope of this Agreement or any part hereof (collectively, “Claim”), shall be resolved, upon the election of either Company or You, by binding arbitration pursuant to this arbitration provision and the applicable rules of American Arbitration Association in effect at the time a Claim is filed. In the event of a conflict between this arbitration provision and the rules of the arbitration administrator, this arbitration provision shall govern. No class actions or joinder or consolidation of any Claim with other persons are permitted in the arbitration without the written consent of Company and You. Any arbitration hearing that You attend will take place in New York, New York. Upon request of either party, the arbitrator shall prepare a short, reasoned written opinion supporting the arbitration award. Judgment upon the award may be entered in any court having jurisdiction. Nothing in this arbitration provision shall prevent Company from seeking or obtaining injunctive relief as a result of a violation or threatened violation of this Agreement and any such injunctive action shall not constitute a waiver of the requirement of arbitration for any Claim. YOU AND COMPANY AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN ARLINGTON, VIRGINIA.
17. Consent to Electronic Communications
You consent to Company providing You in electronic form any information or notices that Company may be required by law to send to You or that may pertain to the Services provided pursuant to this Agreement, or use of information You may submit in connection with the Services provided pursuant to this Agreement (collectively “Information”). Company may provide Information to You: (1) via e-mail at the e-mail address You designated to Company (if any); or (2) in the course of Your use of the Services provided pursuant to this Agreement, including, without limitation, via a screen or page within the Websites. If Your e-mail address changes, You must notify Company of such change immediately. If You fail to do so, You understand and agree that any communications sent via e-mail shall nevertheless be deemed to have been provided or made available to You in electronic form. You may withdraw Your consent to receive Information by making a request in writing to the following address: [email protected]. Please provide Your physical address and email address to request the change. If You choose to withdraw Your consent to electronic communications, then You may be unable to access certain features or functionality that would otherwise be made available to You.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at [email protected]. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
This Agreement and the rights granted hereunder shall not be assigned or transferred by You, in whole or in part. Company shall be free to assign this Agreement without Your consent. Without limiting the foregoing, You may not provide any third party with access to the Services. If any provision of this Agreement is held invalid, such invalidity shall not affect any other provisions of this Agreement. Headings are inserted for reference only and shall not be construed as a part of this Agreement. No failure or delay on the part of Company to exercise any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right preclude any other or further exercise thereof or of any other right. This Agreement represents the entire understanding and agreement between You and Company concerning your Use of the Services and Product, and supersedes any prior representations, understandings or agreements. The Services and the Product furnished by Company in connection therewith are “commercial items,” “commercial computer software” and “commercial computer software documentation,” as those terms are used in the Federal Acquisition Regulation and Defense Federal Acquisition Regulation Supplement. Use, duplication, or disclosure by the United States Government is subject to the restrictions set forth in this Agreement and (where applicable) Company’s end-user license agreement(s) furnished with the Product.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.**