KickFire Free Trial Agreement
This KickFire Free Trial Agreement (the "Agreement") is a legal contract between you ("USER") and VisiStat, Inc. doing business as KickFire ("KICKFIRE"). The Agreement governs KICKFIRE's trial services ("Services ") as described below. Your use of the Services are conditional on your acceptance of each of the terms of this Agreement in the manner provided below. It is therefore agreed as follows:
1. THE SERVICES
- Subject to the terms and conditions of this Agreement and for so long as it is in effect, USER may internally access and use the Services, consisting of the then-current KickFire Prospector™, IP Detector, APIs, Integrations, KickFire SPARK™ and all associated concepts, software, technology, data and designs (collectively "Services"), as made available on KICKFIRE's then-current web site for free trial users. Notwithstanding the above, KICKFIRE reserves the right to modify, add to, cancel and delete from the Services in any manner and at any time without notice in its sole discretion. This access and use is limited to USER's lawful business purposes and must be conducted in a way that conforms to all federal, state, local and foreign applicable laws, regulations, treaties and ordinances, including without limitation those pertaining to privacy and restrictions on and/or requirements for data use and/or disclosure, data protection and similar matters. It is further provided that: (1) The Services, in whole or in part, may not be directly or indirectly accessed or used by or on behalf of USER to design, develop, or in any other way create the concepts, specifications or content of any product or service that is similar to, a derivative work of and/or an effective market substitute for (i) Services and/or (ii) any other KICKFIRE products and services of any kind then in existence, in whole or in part and (2) any data of any kind provided or generated by Services are confidential and proprietary information and trade secrets of KICKFIRE and its suppliers, are solely for USER's internal and lawful access and use and may not in whole or in part be cached, copied, uploaded, published, disclosed, distributed, licensed, sold, transferred or otherwise exploited in any way by or on behalf of USER, unless explicitly allowed in writing by KICKFIRE.
- USER may not permit third parties to engage in any activities permitted under this Section. USER's rights under this Agreement are personal, limited to USER alone and, except as expressly provided herein, indivisible, nontransferable and non-assignable.
- USER will not modify, create derivative works of, copy, reverse engineer, reverse assemble or reverse compile Services or any of their components nor will USER use any mechanical, manual, electronic, or other methods to trace, de-compile, dis-assemble, or identify the source code of any software components of Services , in whole or in part.
- USER will not use the Services in conjunction with (1) any automated data collection methods, spiders, robots, crawlers, data mining tools, scrapers and the like or (2) any spamming, sending viruses or other harmful code or engaging in any denial of service and/or other attacks or unlawful, fraudulent, invalid or deceptive actions of any kind.
2. REGISTRATION PROCESS
3. DURATION AND CANCELLATION OF TRIAL SERVICES
Unless stated otherwise on KICKFIRE's Web pages, each type of trial Services will be provided the amount of free usage stated on KICKFIRE’s web page for those Services, with any additional usage subject to KICKFIRE’s then prevailing terms, conditions and fees. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, KICKFIRE RESERVES THE UNCONDITIONAL RIGHTS TO REFUSE TO PROVIDE USER WITH THE SERVICES AND/OR CANCEL ANY AND ALL OF USER'S RIGHTS TO USE THE SERVICES IMMEDIATELY AND WITHOUT NOTICE, WITH OR WITHOUT CAUSE AND IN ITS SOLE DISCRETION, FOR REASONS OF ITS CONVENIENCE. This Agreement will terminate automatically and without notice if USER violates any terms or conditions of this Agreement. Sections 4, 5, 6, 7, 8, 9,10, 11 and 12 will survive any cancellation of the Services, expiration or termination of this Agreement.
4. REPRESENTATIONS AND RELATED MATTERS
AS A CONDITION OF RECEIVING ANY SERVICES, USER PROMISES, REPRESENTS, AND WARRANTS THE FOLLOWING.
- All of the registration information USER supplies to KICKFIRE belongs to USER or USER is licensed/has permission to use it or is a valid agent for such information's owner, and is true, complete, and accurate. USER will notify KICKFIRE of any changes to USER's registration data within 72 hours of any such changes, by updating the USER account information on KickFire.com.
- USER will safeguard USER's user name and password by not disclosing USER's password to any third party, and USER assumes legal and financial responsibility for any and all harm or liability attributable to USER or any other person accessing USER's account or any Services with USER's user name and password;
- USER will not copy, sell, redistribute, license, sublicense, or otherwise transfer USER's account, Code or any materials provided to USER in connection with the Services, to any third party without KICKFIRE's written consent;
- USER will treat any and all consumer information gathered for or transmitted to USER via the KICKFIRE Website or Services in an ethical lawful manner and will not engage in any spamming, sending viruses or other harmful code or engaging in any denial of service and/or other attacks or unlawful, fraudulent, invalid or deceptive actions of any kind;
5. SOLE AND EXCLUSIVE REMEDY
If USER is dissatisfied with any portion of any Service, USER's sole and exclusive remedy is to cancel USER's account or USER's subscription to the given Service according to this Agreement. No refunds or obligations are inferred or available.
6. PUBLICITY AND PRIVACY
7. PROPRIETARY RIGHTS AND RELATED MATTERS
- Title to and ownership of KickFire and the Services, in whole and in part and whether in electronic, printed, and/or any and all other forms and including without limitation all revisions, enhancements, extensions, translations, know-how, patents, patent rights, copyrights, processes, business methods, business models, moral rights, trade secrets, privacy rights, publicity rights, logos, designs, trademarks, trade names and all other U.S. and foreign intellectual property rights and interests of any kind in and/or associated with KickFire and the Services in any and all forms, are and will remain the sole and exclusive property of KICKFIRE and its licensors and USER acknowledges and agrees that USER has no express or implied rights or interests in any of the same except as stated in this Agreement. Except as stated in this Agreement, USER will have no rights of any kind in or to Services. The rights granted in this Agreement do not include any rights under patents of third parties.
- USER and others on its behalf may from time to time provide suggestions, error corrections, improvements, enhancements, comments or other feedback (collectively "Feedback") to KICKFIRE with respect to Services and/or other matters. It is agreed that all Feedback will be deemed given voluntarily and without expectation of receiving anything in return. Feedback, even if designated as confidential by USER, will be the sole property of KICKFIRE and will not create any confidentiality or other obligation of KICKFIRE. KICKFIRE is at all times free to use, disclose, sell, reproduce, license and otherwise distribute, and exploit all Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
- Certain types of Services may rely on the use of a KICKFIRE supplied, specific and custom code ("Tag") placed in USER Web page(s). Subject to USER compliance with all the terms of this Agreement, KICKFIRE grants USER a non-exclusive, limited, duration, revocable, non-transferable, non-sublicenseable worldwide right to use the Tag supplied to USER by KICKFIRE in connection with the Services solely for USER's personal or internal business purposes. USER agrees to follow all related instructions and restrictions provided by KICKFIRE. In addition, USER agrees that at the termination of Services or this Agreement for any reason, USER will cease the use of the Services, the Tag and all other KICKFIRE Technology. USER further agrees to remove the Tag from all of its Web pages. USER AGREES THAT KICKFIRE WILL NOT BE RESPONSIBLE FOR ANY MALFUNCTIONS, ERRORS, DATA INACCURACIES OR IMPROPER RESULTS OF ANY KIND ATTRIBUTABLE TO USE OR LACK THEREOF OF ANY TAG, WHETHER USED CORRECTLY, INCORRECTLY AND/OR BY UNAUTHORIZED OR UNSUPPORTED USE OF ANY TAG.
- KICKFIRE agrees that all USER registration information, site usage information and statistics, tracking data and Website visitor usage information captured during USER's use of the Services (the "Service Data") are USER's property. USER hereby grants to KICKFIRE a worldwide, perpetual, irrevocable, fully paid, license to use, display, publish or sell the Service Data so long as the Service Data is aggregated with other data gathered from KICKFIRE's other customers and no personally identifiable information of USER will be disclosed in connection with KICKFIRE's use, display, publication or sale of the Service Data.
8. LIMITATIONS OF WARRANTY AND LIABILITY
ALL OF THE PROVISIONS OF THIS SECTION 8 WILL APPLY EXCEPT TO THE EXTENT PROHIBITED BY LAW. ALL EXPRESS, STATUTORY AND/OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS, QUIET ENJOYMENT, SATISFACTORY QUALITY, FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE, ARE EXPRESSLY DISCLAIMED AND EXCLUDED. KICKFIRE WILL NOT BE LIABLE TO USER OR ANY THIRD PARTIES CLAIMING THROUGH USER EXCEPT TO THE EXTENT THAT SUCH LIABILITY IS EXPRESSLY STATED IN THIS AGREEMENT. KICKFIRE AND THE SERVICES ARE MADE AVAILABLE FOR USER'S ACCESS AND USE IN "AS IS" CONDITION WITHOUT ANY WARRANTIES OF ANY KIND THAT IT WILL BE ERROR-FREE, WILL NOT AFFECT BROWSER OPERATION, WILL OPERATE CONTINUOUSLY, WILL BE FREE OF HARMFUL CONTENT, WILL BE SECURE, OR THAT DATA PROVIDED WILL BE CURRENT. KICKFIRE WILL NOT BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY DIRECT, CONSEQUENTIAL, ECONOMIC, PUNITIVE OR INDIRECT DAMAGES OR LOST REVENUE, LOSS OF GOODWILL, DAMAGE TO REPUTATION, LOST PROFITS, LOSS OF USE, LOST DATA, COST OF SUBSTITUTE SERVICES OR ANY INVESTMENTS OR EXPENSES OF USER IN CONNECTION WITH THIS AGREEMENT, EVEN IF KICKFIRE HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. IN NO EVENT WILL KICKFIRE BE LIABLE OR OBLIGATED IN ANY MANNER TO USER OR OTHERS FOR ANY AMOUNT IN EXCESS OF THE SUM OF ONE HUNDRED DOLLARS ($100.00 U.S.), INCLUDING WITHOUT LIMITATION ANY AND ALL LIABILITY ARISING FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT AND/OR SERVICE LIABILITY, AND ANY OTHER STATUTORY, CONTRACT, TORT AND/OR ANY OTHER THEORIES OF LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE. THIS SECTION ALLOCATES THE RISKS BETWEEN THE PARTIES, IS REFLECTED IN THE ECONOMIC TERMS OF THIS AGREEMENT, IS AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES AND WILL BE EFFECTIVE NOTWITHSTANDING THE FAILURE OF PURPOSE OF ANY ESSENTIAL AND/OR OTHER REMEDY HEREIN.
9. INDEMNITY OF KICKFIRE
USER will indemnify and hold harmless KICKFIRE and its officers, directors, employees, contractors and representatives, from all losses, damages, liabilities, costs, expenses, and reasonable attorney's fees paid and/or incurred by these parties as a result of any demand, claim, suit, award or judgment arising from (1) USER's access to and/or use of the Services; (2) USER's breach of any terms or conditions of this Agreement or applicable law and (3) any disputes and/or legal process of any kind between USER and any third party.
10. IMPORT AND EXPORT COMPLIANCE
USER will not exercise its rights under this Agreement in violation of any United States statute or regulation, including without limitation regulations of the United States Department of Commerce and the United States Office of Export Administration, the International Traffic in Arms Regulations and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control.
11. GOVERNING LAW AND DISPUTES
Services are sponsored and managed by KICKFIRE in the state of California, USA. The laws of the state of California govern this Agreement and all of its terms and conditions, without giving effect to any principles of conflicts of laws. This Agreement is deemed to have been executed and fully performed at San Jose, California. The United Nations Convention on Contracts for the International Sale of Goods (1980) is excluded from application to this Agreement. USER agrees that any dispute, claim, controversy, action at law or in equity arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, will be determined by confidential arbitration in San Jose, California, except that, to the extent USER has in any manner violated or threatened to violate KICKFIRE's Intellectual Property Rights, KICKFIRE may seek injunctive or other appropriate relief in any state or federal court in the state of California or elsewhere, and USER consents to exclusive jurisdiction and venue in such courts. Any arbitration arising out of or related to this Agreement will be conducted by JAMS by a single arbitrator with substantial experience in intellectual property matters in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those rules exist on the effective date of this Agreement, including Rules 16.1 and 16.2 of those rules. The arbitrator is to be a retired judge at any available location of JAMS in Santa Clara County. The parties may agree on the arbitrator, but if they cannot agree within thirty (30) days of the submission of any claim to JAMS, then a retired judge will be selected by JAMS. The conclusion of the arbitrator will be in accordance with applicable law, in writing and will be binding and final. The arbitrator's award may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. Any changes to this arbitration policy will only be effective as to disputes that arise after such changes go into effect.
12. GENERAL PROVISIONS
- No agency, partnership, joint venture, or employment is created between KICKFIRE and USER by this Agreement. Neither party has any authority, express or implied, to create any obligation or responsibility on behalf of the other party. The parties are for all purposes independent contractors.
- No waiver, amendment, or modification of any provision of this Agreement will be effective unless in writing and signed by the party against whom its enforcement is sought. No failure or delay by either party in exercising any right or remedy under this Agreement, except as provided herein, will operate as a waiver.
- If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, unlawful, or invalid, such provision will be deemed modified to eliminate the invalid portion and as so modified will be deemed a part of this Agreement.
- This Agreement is the entire agreement of the parties for the subject hereof and supersedes all oral or written proposals, purchase orders and discussions relating to this Agreement and all prior courses of dealing or industry customs. Neither party has made this Agreement in reliance on any representations of fact or opinion not expressly stated herein.
- Each person electronically signing this Agreement represents that he or she has requisite authority to do so.
- This Agreement will be binding on the Parties' legal representatives, successors and permitted assigns. USER may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of KICKFIRE.
- Any notices between the Parties regarding this Agreement will be in writing and sent by certified mail, return receipt requested, or overnight courier to the receiving Party at its then current mailing address or, with respect to notices sent to USER, by email to any email address previously provided to KICKFIRE.
BY CLICKING BELOW, USER ACKNOWLEDGES HIS/HER/ITS UNDERSTANDING OF AND AGREEMENT WITH ALL OF THE ABOVE TERMS AND CONDITIONS.