KUSHIM TERMS OF SERVICE  - last updated June 30, 2020

The following terms and conditions (“Terms of Service”) govern the usage by you (“you” or “User”), of this website or mobile application (collectively, “Site”) to retrieve, review and print, and otherwise utilize applications available through Kushim’s software platform that is being made available to you through this cloud based service (collectively with the Site, the “Services”).  Please read these Terms of Service carefully as they constitute a legally binding agreement between you and Kushim Inc. (“us” or “Kushim”). By logging on to the Site you are indicating your acceptance of these Terms of Service on behalf of yourself and, where applicable, your institution (“User’s Institution”).  All references to “User” in these Terms of Service shall be deemed to include User’s Institution unless the context requires otherwise, provided that, if User’s Institution has entered into a separate written contract with Kushim with respect to the Services, any conflict between these Terms of Service and such separate contract shall be governed by such separate contract, but only with respect to User’s Institution.  Further, you are agreeing to comply with the Acceptable Use Policy of our supplier who provides hosting services (see https://www.linode.com/legal-aup/).  You agree to comply with similar policies provided by other suppliers that we may make available to you from time to time.  If you are not willing to be bound by the foregoing, please promptly exit from the Site.  We reserve the right to discontinue Services to you, individually, or to User’s Institution, in the event that you do not comply with these Terms of Service.  Please note that we reserve the right to modify these Terms of Service from time to time and, in such event, the modified Terms of Service shall govern use of the Services going forward.

  1. Rights and License Granted.

User is granted the non-exclusive right and license to remotely access the Kushim software (“Software”) in order to receive the Services. User understands and agrees that the Software may also be accessed by other employees, as well as accountants and other agents, advisors, experts and other third parties providing services to User’s Institution who are authorized by User’s Institution to access the Software (collectively, “Authorized Users”).  Kushim retains all intellectual property rights to the Software and Services and nothing in these Terms of Service shall be deemed to confer any rights to User with respect to the Software or Services other than as expressly provided in this paragraph. User acknowledges that at no time shall it be entitled to copy, distribute, transmit, modify or creative derivative works of the Software or any related materials or use the Software or the Services other than for its internal business purposes. User understands that User’s license to the Software ends upon termination of these Terms of Service.

  1. Trial Period/Term and Termination.

Trial Period.  If Kushim has granted User’s Institution a trial period, your right to use the Software shall commence on the date that you first access the Software and shall terminate 14 days thereafter or such other period as mutually agreed (“Trial Period”) unless you purchase a subscription prior to the end of the Trial Period. During the Trial Period, no subscription fees shall be due.  Thereafter, subscription fees shall take effect and shall be paid in accordance with these Terms of Service.

 

Subscription Period.  Except with respect to trial use, your right to access the Services shall run for the length of  the subscription period for which User’s Institution paid the applicable subscription fee (the “Subscription Period”).  The Subscription Period shall renew automatically for additional consecutive twelve (12) month terms unless either party provides the other party with written notice of termination at least thirty (30) days’ prior to the end of the then current term.  Notwithstanding the foregoing, no automatic renewal shall occur unless the then applicable subscription fee has been paid on or prior to the expiration date of the then current term.   

 

 

Termination.  Kushim may terminate your access to the Services if you commit a material breach that is not cured, if curable, within thirty (30) days of receipt of written notice of the breach or as otherwise permitted under any applicable agreement between Kushim and User’s Institution. 

 

 

These Terms of Service may be terminated immediately upon written notice by Kushim if User’s Institution becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors. 

  1. No Customization.

User acknowledges that the Services (including the Software) are provided without customization. User assumes all responsibility to review all features included in the Services prior to accepting the Terms of Service and accepts the Services and Software “as is”.

  1. Services Support; Software Updates; Operating Environment.

Support for the Services will be provided during Kushim’s then standard support hours. User acknowledges that it will be required to accept updates to the Software that Kushim makes available to its users, generally.  Kushim will use commercially reasonable efforts to provide advance notice of major updates.  User further acknowledges that the provision of the Services is dependent on User’s maintaining an operating environment that meets the requirements specified by Kushim.

  1. Integration to Third Party Products.

The Kushim Services integrate with certain third party products.  User or User’s Institution is solely responsible to obtain whatever licenses and rights it needs to access the third party products and Kushim makes no warranties with respect to such integration.  Kushim may change the third party products with which it integrates at any time.

  1. Terms of Payment.

Payments of subscription fees are due monthly no later than 30 days from the first of the month.  Kushim shall have the right to require reports and other relevant information showing how User’s Institution calculated subscription fees for any given month.  Kushim may assess interest on any sums not paid when due at a rate of twelve percent (12%) per annum or the highest rate allowed by law. User’s Institution also agrees to pay any costs of collection, including court costs and reasonable attorney’s fees. User ‘s Institution shall be responsible for payment of federal, state and local taxes, value-added taxes, sales, use, property, excise, or other taxes or duties now or hereafter levied in connection with use of the Services or Software, except taxes based on Kushim’s net income.

Subscription fees in effect during a given Subscription Period may change for any subsequent terms.  Kushim may post its subscription fees, but is not required to do so.  Kushim will use commercially reasonable efforts to respond to User’s request for a then current price list within sixty (60) days of such request.

  1.  Representations and Warranties.

By Kushim.  Kushim represents, warrants and covenants that the Services will perform materially in accordance with their documentation where user documentation is provided.  User and User’s Institution’s sole remedy for breach of this warranty is for Kushim to use commercially reasonable efforts to cause the Services to perform as warranted.

By User.  User’s Institution is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by User, an Authorized User, or by any person or entity acting through User.  Without limiting the foregoing, User and User’s Institution each represents, warrants and covenants that it will not: (a) use the Services or Software in a manner that: (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (ii) will disrupt a third party’s use of any services provided by Kushim; or (iii) allows anyone other than User and the Authorized Users to access, directly or indirectly, the benefits of the Services or Software; or (b) violate or tamper with the security of any Services or Software or  decompile, disassemble, decode, or otherwise reverse engineer any Software. If Kushim has reasonable grounds to believe that User is utilizing the Services or Software for any such illegal or disruptive purpose, Kushim may terminate or suspend the Services immediately with or without notice to User.

Disclaimer.  EXCEPT FOR THE LIMITED WARRANTIES IN THIS AGREEMENT, THE PARTIES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, USE OF ANY INFORMATION OBTAINED BY WAY OF THE SERVICES IS AT USER’S OWN RISK AND KUSHIM SPECIFICALLY DENIES ANY RESPONSIBILITY FOR THE ACCURACY OR QUALITY OF INFORMATION OBTAINED THROUGH THE SERVICES. FURTHER, THE PROVISION OF THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KUSHIM IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

  1.  Limitation of Liability.

IN NO EVENT SHALL KUSHIM BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAVE BEEN DISCLOSED TO KUSHIM IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY KUSHIM.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USER AGREES THAT KUSHIM’S AGGREGATE LIABILITY FOR DAMAGES, IF ANY, INCLUDING, BUT NOT LIMITED TO, LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, AND STRICT LIABILITY IN TORT, WITH RESPECT TO ANY CLAIM UNDER THESE TERMS OF SERVICE OR ANY OTHER AGREEMENT WITH USER OR USER’S INSTITUTION FOR THE SERVICES, SHALL NOT EXCEED, IN THE AGGREGATE, THE SUBSCRIPTION FEES PAID BY USER’S INSTITUTION DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

  1. Indemnity. 

By Kushim.  Kushim shall indemnify and hold harmless User and its officers, directors, employees, agents and independent contractors from and against any and all losses, claims, liabilities and expenses whatsoever, (including, without limitation, reasonable attorneys’ fees) regardless of the form of action, arising from or in connection with third party claims that the Software infringes a third party’s intellectual property right in the United States.  Without limiting Kushim’s other rights or obligations under these Terms of Service, if a claim within the scope of Kushim’s indemnity obligation under this Section is made or threatened, Kushim may, at its expense and option, procure the right for User to continue using the Software with non-infringing components which are substantially similar in functionality or modify the Software such that it is non-infringing.  In addition, Kushim shall have no liability for, and its indemnification obligations shall not apply, to the extent that a claim is based on (1) User’s use of the Software or Services in a manner that violates these Terms of Service; or (2) modifications to the Software or Services not made by Kushim; or (3) where the infringing component of the Software is based on specifications provided by User or User’s Institution; or (4) the combination of the Software or Services with any software, data or services not supplied by Kushim.

By User.  User shall indemnify and hold harmless Kushim and its officers, directors, employees, agents, suppliers and independent contractors from and against any and all losses, claims, liabilities and expenses whatsoever, (including, without limitation, reasonable attorneys’ fees) regardless of the form of action, arising from or in connection with: (i) a third party claim alleging that use of any data not provided by Kushim infringes the rights of, or has caused harm to, a third party; or (ii) a third party claim arising from the breach by User of these Terms of Service.

The party claiming the right to be indemnified under this Section (“Indemnitee”), agrees to promptly notify the other party (“Indemnitor”) in writing of any claim under this provision, to cooperate with the Indemnitor (at the Indemnitor’s expense) in defending or settling such claim, and to give the Indemnitor sole authority to control the defense and settlement of such claim; provided, however, that the Indemnitor shall not enter into any settlement that adversely affects the Indemnitee without obtaining the Indemnitee’s prior written consent.

  1.  Confidential and Proprietary Information.

Protection of Information.  During the Subscription Period, one party (the “Provider”) may receive from the other (the “Recipient”) certain tangible and intangible material, information and data, which that party considers to be confidential (“Information”).  Such Information may include, but is not limited to, (i) information concerning the Provider, its customers or prospects; (ii) the Provider’s finances; (iii) the Provider’s research and development, business practices, strategies or sales; (iv) the Provider’s services, software code, database objects, data models, tables, data structures, screen layouts, process designs, workflows, technical specifications or documentation; (v) the Provider’s pricing; or (vi) confidential data relating to User, User’s Institution or User’s Institution’s portfolio (“User Data”). The Recipient’s confidentiality obligations regarding the Information shall not apply to Information that (i) was, prior to its disclosure, in the Recipient’s possession or known to the Recipient free of any confidentiality  obligation; (ii) at the time of disclosure to the Recipient or thereafter becomes public knowledge through no fault of the Recipient; (iii) is or becomes available to the Recipient from a third party lawfully possessing and entitled to disclose such information without restriction; or (iv) the Recipient is under a legal obligation to disclose pursuant to an order of any court or like entity, provided that the Recipient shall provide the Provider with prompt notice of such request or order, including copies of subpoenas of order requesting the Information, cooperate reasonably with the Provider in resisting the disclosure of the Information via a protective order or other appropriate legal action, and shall not make disclosure until the Provider has had a reasonable opportunity to resist such disclosure, unless the Recipient is ordered otherwise.  Information disclosed by the Provider is and will remain the property of the Provider.

 

Nondisclosure.  During the term of these Terms of Service and thereafter, (i) the Recipient will take such steps as may be reasonably necessary to protect the confidentiality of the Provider’s Information and to prevent disclosure of such Information to third parties and to ensure that such Information is disclosed only to employees and service providers of the Recipient who need to know such Information in the course of performing activities under these Terms of Service and who are under similar confidential obligations; (ii) the Recipient shall not use nor permit any third party to use the Information for any purpose other than in furtherance of these Terms of Service; and (iii) the Recipient shall notify the Provider promptly of any loss or unpermitted disclosure or use of the Provider’s Information of which is it becomes aware.

 

                Personal Information.  Kushim acknowledges that the right to use and disclose personal information as such term is defined by applicable law (“Personal Information”), is limited by U.S. federal and state laws and regulations regarding privacy and the confidentiality of Personal Information.  If and to the extent that Kushim receives Personal Information, and without limiting Kushim’s other obligations under this Section 10, Kushim agrees that it shall treat Personal Information as confidential, and it shall instruct its affiliates, employees, agents, suppliers, distributors and subcontractors (collectively “Representatives”) to:

 

(a)     Limit access to Personal Information to Representatives who have a need to know to provide the services contemplated under these Terms of Service (the “Purpose”);

(b)     Use, retain and disclose Personal Information solely to carry out the Purpose;

(c)     Not sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic or other means, Personal Information for monetary or other valuable consideration;

(d)     Not disclose Personal Information unless the recipient has agreed to provisions substantially similar to those set form in subsections (a)-(c) above;

(e)     Take commercially reasonable measures to (i) protect against any anticipated threats or hazards to the security or integrity of such information; (ii) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to User; and (iii) protect all Personal Information and not directly or indirectly disclose the same to any other person or entity in violation of applicable federal and state laws or regulations regarding privacy; 

(f)      As soon as possible after it becomes aware of the same, notify User in the event of any breach in security related to Personal Information; and

(g)  Establish reasonable measures for the proper disposal of the Personal Information subject to compliance with the other terms of these Terms of Service and applicable law.                      

Nothing in this Section 10 or elsewhere in these Terms of Service shall be deemed to diminish User’s and User’s Institution’s responsibility for complying with all applicable laws, and User’s Institution shall be responsible for obtaining whatever permissions may be required in order for Kushim to access User Data to the extent needed for Kushim to provide the Services. In addition to, and without limiting the foregoing or any other provision of these Terms of Service, in the event, and in each instance, where User or User’s Institution desires to use the Services in a manner that may invoke laws outside the U.S., it shall be User’s responsibility to provide Kushim with advance written notice of the same.  Kushim shall work with User’s Institution to address the requirements of such non-U.S. laws. 

  1. Additional User Responsibilities.

User shall use the Services and Software solely for lawful purposes. User’s Institution shall implement security procedures necessary to limit access to the Services and Software to User and other Authorized Users and shall maintain a procedure external to the Services for back-up of data and reconstruction of lost or altered files, data or programs. User’s Institution is responsible for establishing designated points of contact to interface with Kushim.

  1. Miscellaneous; General Terms.

Survival.  Payment obligations under Section 6 and Sections 8, 9, 10 shall survive termination or expiration of these Terms of Service. 

 

Assignment.  Neither User nor User’s Institution may assign these Terms of Service without the prior written consent of Kushim.  Any attempted assignment or delegation in violation of this Section shall be void and without effect.  Subject to the foregoing, these Terms of Service will benefit and bind the parties’ successors and assigns.

 

Severability of Provisions.  If any provision or provisions of these Terms of Service shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or be impaired thereby.

 

Force Majeure.  Except for payment obligations for products or services received, neither party will be responsible for performance of its obligations hereunder where delayed or hindered by war, riots, embargoes, strikes, disease or acts of its vendors, suppliers, accidents, acts of God, or any other event beyond its reasonable control.

 

Notices.  All notices required to be sent hereunder shall be delivered via email to support@kushim.vc if to Kushim and to the email address that Kushim has on file for User’s Institution if to User, or such other email address as one party shall notify the other party by email.  Notices shall be deemed to have been given upon receipt by the other party.

 

Waiver. The failure of Kushim to enforce its rights under these Terms of Service shall not be construed as a waiver of such rights.

   

Governing Law; Forum.  These Terms of Service and all matters relating to these Terms of Service shall be construed and controlled by the laws of the State of Delaware without reference to its conflict of law principles. The parties irrevocably submit to the jurisdiction of the U.S. Federal and State courts located in Delaware.  No action, regardless of form, arising out of these Terms of Service may be brought by either party more than two (2) years after the cause of action has arisen.