Last Modified: May 24th, 2018
Knack Platform License Agreement
This Knack Platform License Agreement (the “Agreement”) is between Evenly Odd, Inc. (d/b/a Knack) (“Knack”) and the entity or person agreeing to these terms (“Customer”).
Provision of the Services
Services Use. Subject to this Agreement, during the Term, Customer may: (a) use the Services, (b) integrate the Services into any Application that has material value independent of the Services, and (c) use any Software provided by Knack as part of the Services. Customer may not sublicense or transfer these rights except as permitted under Section 15.2 of the Agreement.
Facilities. All facilities used to store and process an Application and Customer Data will adhere to reasonable security standards no less protective than the security standards at facilities where Knack processes and stores its own information of a similar type. Knack has implemented at least industry standard systems and procedures to (i) ensure the security and confidentiality of the Application(s) and Customer Data, (ii) protect against anticipated threats or hazards to the security or integrity of the Application(s) and Customer Data, and (iii) protect against unauthorized access to or use of the Application(s) and Customer Data.
Data License and Location. Customer hereby grants Knack an irrevocable, non-exclusive, royalty-free, fully-paid, worldwide license to reproduce, distribute, perform, prepare and otherwise use the Customer Data in connection with the Services and as permitted by this Agreement. Knack may process and store the Customer Data anywhere Knack or its agents maintain facilities. By using the Services, Customer consents to this processing and storage of Customer Data.
Accounts. To register for the Services and receive an Account, Customer must provide Knack with current, complete and accurate information as prompted by the registration form, including a valid e-mail address. Customer must have an Account to use the Services, and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and for any use of its Account. If Customer becomes aware of any unauthorized use of its password or its Account, Customer will notify Knack as promptly as possible. Knack has no obligation to provide Customer multiple Accounts. Customer is solely responsible for any and all activities that occur under its Account and for use and disclosure of any Customer Data created, collected or maintained in its Account whether such activities or use is conducted by Customer or a third party. Customer agrees to notify Knack immediately upon learning of any unauthorized use of its Account or any other breach of security.
New Applications and Services. Knack may: (i) make new applications, tools, features or functionality available from time to time through the Services and (ii) add new services to the “Services” definition from time to time (by adding them at the URL set forth under that definition), the use of which may be contingent upon Customer’s agreement to additional terms.
To the Services. Knack may make commercially reasonable updates to the Services from time to time. If Knack makes a material change to the Services, Knack will inform Customer, provided that Customer has subscribed with Knack to be informed about such change.
To the Agreement. Knack may make changes to this Agreement, including pricing (and any linked documents) from time to time. Unless otherwise noted by Knack, material changes to the Agreement will become effective 30 days after they are posted, except if the changes apply to new functionality in which case they will be effective immediately. If Customer does not agree to the revised Agreement, Customer must stop using the Services. Knack will post any modification to this Agreement to the Terms URL. In the event that a change to this Agreement would be in direct conflict with any of the terms and conditions set forth in a written HIPAA Business Associate Agreement or other written Addendum entered into between Knack and Customer, the Addendum will control over such change.
To the HIPAA Business Associate Agreement, Regional Data Processing Addendum and other written Addendum to this Agreement. For Customers that have entered into a written HIPAA Business Associate Agreement, Regional Data Processing Addendum and other written Addendum to this Agreement with Knack, Knack will only make changes to such agreement(s) in a written amendment signed by Customer and Knack, unless otherwise specified in such Addendum.
From time to time Knack may offer a free trial of the Services to prospective customers. Knack reserves the right to discontinue the offering of a free trial of the Services without notice. Free trials are meant to let prospective customers experience the Services before committing to it. Use of a free trial of the Services for anything other than the above is prohibited. Furthermore, Customer agrees that it is not allowed to (i) open more than one trial account, and/or (ii) upon termination of its free trial account open a new trial account.
One type of free trial offering requires payment information at the time of sign up. This type of free trial account automatically converts to a regular paying Account at the end of the trial period. If the trial account is not closed within the trial period, regular fees will apply immediately thereafter.
Another type of free trial offering requires no payment information at sign up. Unless Customer converts the free trial account to a paying Account within fourteen (14) days of opening the Account, Knack reserves the right to discontinue the Account at the end of such fourteen (14) day trial period and delete all Customer Data and Account information without notice except to the extent prohibited by applicable law or as otherwise agreed to by Knack.
Fees. The fees for the Services are as posted at https://knack.com/pricing unless otherwise stated on a valid written or electronic purchase order (which has been accepted by Knack in writing); provided, however, that any additional or conflicting terms contained in any purchase order, standardized form or correspondence, which are in addition to or conflict with this Agreement, shall be null and void unless such terms and conditions are contained in an amendment to this Agreement duly executed by both parties hereto.
Online Billing. At the beginning of the applicable Fee Accrual Period, Knack will issue an electronic bill to Customer for all charges to accrue during such period. Customer’s obligation to pay all Fees is non-cancellable. Payments made via wire transfer must include the bank information provided by Knack.
Taxes. Customer is responsible for any Taxes, and Customer will pay Knack for the Services without any reduction for Taxes. If Knack is obligated to collect or pay Taxes, the Taxes will be billed to Customer, unless Customer provides Knack with a timely and valid tax exemption certificate authorized by the appropriate taxing authority. In some states the sales tax is due on the total purchase price at the time of sale and must be billed and collected at the time of the sale. If Customer is required by law to withhold any Taxes from its payments to Knack, Customer must provide Knack with an official tax receipt or other appropriate documentation to support such withholding.
Bill Disputes & Refunds Any bill disputes must be submitted within fifteen (15) days of the billing date. If the parties determine that certain billing inaccuracies are attributable to Knack, Knack will not issue a corrected bill, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If the disputed bill has not yet been paid, Knack will apply the credit memo amount to the disputed bill and Customer will be responsible for paying the resulting net balance due on that bill. To the fullest extent permitted by law, Customer waives all claims relating to Fees unless claimed within sixty days after charged (this does not affect any Customer rights with its credit card issuer). Refunds (if any) are at the discretion of Knack and will only be in the form of credit for the Services. Nothing in this Agreement obligates Knack to extend credit to any party.
Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Knack in collecting such delinquent amounts. If Customer is late on payment for the Services, Knack may suspend the Services (in accordance with Section 4) or terminate the Agreement for breach pursuant to Section 8.2; provided that re-activation of a suspended account may be subject (in Knack’s sole discretion) to additional fees.
No Purchase Order Number Required. For clarity, Customer is obligated to pay all applicable Fees without any requirement for Knack to provide a purchase order number on Knack’s bill (or otherwise).
Acceptable Use Policy (the "AUP"). Customer agrees not to use, or allow access to, the Services for the purposes of (a) spam or sending any unsolicited commercial messages; (b) disrupting the performance of Knack servers or causing server-wide outages; and (c) advertising, transmitting, storing, posting, displaying, or otherwise making available materials that (i) violate any law, regulation, or other provision having the force of law, either intentionally or unintentionally; (ii) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (iii) infringe or misappropriate the intellectual property rights of others; (iv) violate privacy, publicity, or other personal rights of others; (v) falsify the origin of an email, either by forging the sender’s address or email header, or otherwise; (vi) are of adult nature, pornographic, or harmful to minors; (vii) contain the images of children or disclose personally identifiable information belonging to children; (viii) are unlawful, harmful, vulgar, obscene, threatening, abusive, harassing, tortious, unlawful, libelous; and/or (ix) are viruses, worms, so-called trojan horses, or other destructive codes, files, or programs, or information regarding the creation of such material. If Knack determines Customer has violated the terms of this AUP, that determination, made in Knack’s sole and absolute discretion, constitutes grounds for immediate termination of Customer’s Account without notice to Customer or penalty to Knack.
Compliance. Customer is solely responsible for its Applications, and Customer Data and for making sure its Applications and Customer Data comply with the AUP. Knack reserves the right to review the Application and Customer Data for compliance with the AUP. Customer is responsible for ensuring all Customer End Users comply with Customer’s obligations under this Agreement, including the AUP, the Service Specific Terms, and the restrictions in Sections 3.4 and 3.6 below.
Privacy. Customer represents that Customer is the owner or otherwise has authority and consent under applicable laws necessary to permit use, disclosure, processing and storage of Customer Data under this Agreement. Customer is solely responsible for access to, use and disclosure of Customer Data, whether by Customer, Customer’s End Users or third parties, and Knack disclaims any and all responsibility associated with such access, use and disclosure. Customer will comply with all applicable laws with respect to use, disclosure, processing and storage of Customer Data under this Agreement.
Customer will not, and will not allow third parties under its control to: (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of the Services (subject to Section 3.5 below and except to the extent such restriction is expressly prohibited by applicable law); (b) use the Services for High Risk Activities; (c) sublicense, resell, or distribute any or all of the Services separate from any integrated Application; (d) create multiple Applications, Accounts to simulate or act as a single Application or Account (respectively) or otherwise access the Services in a manner intended to avoid incurring Fees; or (e) process or store any Customer Data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State.
Unless otherwise specified in writing by Knack, Knack does not intend uses of the Services to create obligations under the U.S. Health Insurance Portability and Accountability Act (“HIPAA”) and its related rules and regulations, as amended, the European Union Directive 95/46/EC (the Data Protection Act or “DPA”), as amended by the European Union General Data Protection Regulation (“GDPR”), and their related rules and regulations, or any other similar local, national, regional or international data protection laws (collectively, “Data Protection Laws”) and makes no representations that the Services satisfy such requirements for Customer. Because Knack may not be able to independently determine whether Customer or Customer Data may be subject to the Data Protection Laws, Customer must: (i) notify and obtain Knack’s prior consent to use the Services where subject to such Data Protection Laws; and (2) enter into a written HIPAA Business Associate Agreement (“HIPAA BAA”) and/or Regional Data Processing Addendum, or other applicable written addendum with Knack, as applicable. Customer will not use the Services for any purpose or in any manner involving data which is subject to such Data Protection Laws (including without limitation if Customer is or becomes a “covered entity” or “business associate” as defined under HIPAA) unless Customer has received such prior written consent to such use from Knack and entered into a separate written addendum with Knack with respect to such as required under this section. Failure to comply with this section may result in termination of Customer’s Account and this Agreement in Knack’s sole discretion.
Third Party Components. Third party components (which may include open source software) of the Services may be subject to separate license agreements. To the limited extent a third party license expressly supersedes this Agreement, that third party license governs Customer’s use of that third party component.
Documentation. Knack may provide Documentation for Customer’s use of the Services. The Documentation may specify restrictions (e.g. attribution or HTML restrictions) on how the Applications may be built or the Services may be used and Customer will comply with any such restrictions specified.
Copyright Policy. Knack cannot determine whether something is being used legally or not without input from copyright holders. Knack responds to notices of alleged copyright infringement and terminates accounts of repeat infringers according to applicable copyright laws including in particular the process set out in the U.S. Digital Millennium Copyright Act. If Customer believes there is or has been a violation of Customer’s or Customer End Users’ copyrights and wants to notify Knack, Customer can do so by filling out the form at https://knack.com/contact.
Suspension/Removals. If Customer becomes aware that any Application or Customer Data violates the AUP or this Agreement, Customer will immediately suspend the Application and/or remove the relevant Customer Data (as applicable). If Customer fails to suspend or remove as noted in the prior sentence, Knack may specifically request that Customer do so. If Customer fails to comply with Knack’s request to do so within twenty-four hours, then Knack may disable the Application, and/or disable the Account (as may be applicable) until such violation is corrected except to the extent prohibited by applicable law.
Emergency Security Issues. Despite the foregoing, if there is an Emergency Security Issue, then Knack may automatically suspend the offending Application and/or Account. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or resolve the Emergency Security Issue. If Knack suspends an Application or the Account, for any reason, without prior notice to Customer, at Customer’s request, Knack will provide Customer the reason for the suspension as soon as is reasonably possible.
Intellectual Property Rights. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and the Application (if applicable), and Knack owns all Intellectual Property Rights in the Services and Software.
Customer Feedback. If Customer provides Knack Feedback about the Services, then Knack may use that information without obligation to Customer, and Customer hereby irrevocably assigns to Knack all right, title, and interest in that Feedback.
Proprietary Notices. Customer shall not remove, hide or otherwise alter any proprietary notices or labels included with the Software, including but not limited to any “Powered by Knack” labels or links displayed and/or included with the Software.
By Customer. Customer is responsible for technical support of its Applications.
By Knack. From time to time, Knack support staff may access your Account in order to maintain or improve service, including without limitation, assisting you with technical or billing issues. Subject to payment of applicable support Fees, Knack will provide Support to Customer during the Term in accordance with the Support Guidelines. Certain Support features are only included with a minimum Services package level as described in the “Fees” definition below.
Obligations. The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party’s reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual. As between the parties, Customer is responsible for responding to all third party requests concerning its use and Customer End Users’ use of the Services. This Section 7.2 is not intended to and shall not authorize disclosure of protected health information in any manner not permitted by the HIPAA Business Associate Agreement, as applicable.
Agreement Term. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 8 of this Agreement.
Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, Knack may terminate any, all, or any portion of the Services, if Customer meets any of the conditions in this Section 8.2.
Termination for Convenience. Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time through the Customer’s Account and upon termination, must cease use of the applicable Services. Knack may terminate this Agreement for its convenience at any time without liability to Customer.
Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) any applicable refunds shall be granted in accordance with the refund policy set forth at https://knack.com/policies/refunds; (iii) Customer will retrieve any Customer Data; and (iv) each party will use commercially reasonable efforts to destroy all Confidential Information of the other party. Except as otherwise may be provided for in the HIPAA Business Associate Agreement, as applicable, Customer remains solely responsible for making and retaining any copies of Customer Data which Customer may require prior to deletion, and Knack disclaims any and all responsibility associated with such deleted Customer Data. Customer will immediately thereafter discontinue use of and delete Customer’s Account.
Customer is permitted to state publicly that it is a customer of the Services, consistent with the Trademark Guidelines. If Customer wants to display Knack Brand Features in connection with its use of the Services, Customer must obtain written permission from Knack through the process specified in the Trademark Guidelines. Knack may include Customer’s name or Brand Features in a list of Knack customers, online or in promotional materials. Knack may also reference Customer as a customer of the Services and, subject to Customer consent, utilize Customer testimonials and/or Brand Features for advertising, marketing and related purposes. Neither party needs approval if it is repeating a public statement that is substantially similar to a previously-approved public statement. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features. A party may revoke the other party’s right to use its Brand Features under this Section 9 with written notice to the other party and a reasonable period to stop the use.
Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. Knack warrants that it will provide the Services in accordance with the applicable SLA (if any).
EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KNACK AND ITS SUPPLIERS DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. KNACK AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION, PROJECT, AND CUSTOMER DATA. NEITHER KNACK NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR KNACK’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR KNACK’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO KNACK UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
By Customer. Unless prohibited by applicable law, Customer will defend and indemnify Knack and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Customer Data or Customer Brand Features; or (ii) Customer’s, or Customer End Users’, use of the Services in violation of the AUP or this Agreement.
By Knack. Knack will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) Knack’s technology used to provide the Services (excluding any open source software) or (b) any Knack Brand Feature, in each cash (a) or (b), infringes or misappropriates the third party’s patent, copyright, trade secret, or trademark.
Exclusions. This Section 13 will not apply to the extent the underlying Allegation arises from:
Conditions. Sections 13.1 and 13.2 will apply to the extent:
U.S. Federal Agency Users
The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements.
Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. The email address for notices being sent to Knack’s Legal Department is firstname.lastname@example.org. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.
No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
Governing Law; Arbitration. All claims arising out of or relating to this Agreement or the Services shall be governing by Pennsylvania law, excluding its conflict of laws rules. Any controversy or claim, whether based on contract, tort or other legal theory (including, but not limited to, any claim of fraud or misrepresentation) but not including claims for injunctive relief, arising out of or related to this Agreement shall be resolved by arbitration pursuant to this Section 15.10 and the then-current rules and supervision of the American Arbitration Association. The duty to arbitrate shall extend to any officer, employee, agent, or subsidiary making or defending any claim which would otherwise be subject to arbitration hereunder. The arbitration shall be held in the Commonwealth of Pennsylvania, Philadelphia County, before a single arbitrator who is knowledgeable in business. If the parties are unable to agree on one arbitrator then each party shall select an arbitrator, the two arbitrators so chosen shall jointly select a third arbitrator, and the third arbitrator so chosen shall become the sole arbitrator hereunder. The arbitrator’s decision and award shall be final and binding and may be entered in any court having jurisdiction thereof. The arbitrator shall not have the power to award punitive or exemplary damages. Each party shall bear its own attorneys, accountants, and other professional and/or expert fees and costs associated with the arbitration, and other costs and expenses of the arbitration shall be borne as provided by the rules of the American Arbitration Association. If court proceedings to stay litigation or compel arbitration are necessary, the party who unsuccessfully opposes such proceedings shall pay all associated costs, expenses and attorney’s fees which are reasonably incurred by the other party. If any portion of this Section 15.10 is held to be unenforceable, it shall be severed and shall not affect either the duty to arbitrate hereunder or any other part of this Section 15.10.
Amendments. Except as set forth in Section 1.6(b) or (c), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
Survival. The following sections will survive expiration or termination of this Agreement: 2, 3, 5, 7, 8.5, 11, 12, 13, and 15.
Entire Agreement. This Agreement, including any HIPAA Business Associate Agreement, Regional Data Processing Addendum, and other written addendum, as applicable, sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, Knack may provide an updated URL in place of any URL in this Agreement.
Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL.
FOR MORE INFORMATION
If you have any questions or comments about this Agreement, the Service, or your experience with the Service, please contact Knack online at https://knack.com/contact.