Terms of Service
- Kincaid IT Requirements. Subject to Customer’s compliance with all of the terms and conditions of this Agreement, Kincaid IT will use commercially reasonable efforts to provide the services specified on the Quote (the “Services”). The Services will be delivered using Kincaid IT’s proprietary software, processes, user interfaces, know-how, techniques, designs, ideas, concepts, and other tangible or intangible technical material or information (“Kincaid IT Technology”). Kincaid IT may use third party subcontractors to provide any of the Services provided that such subcontractors are contractually obligated to protect the Confidential Information of Customer.
- Acceptance. Acceptance of the Services will be deemed to occur on the Implementation Date.
- Initial Set Up Services. Kincaid IT will provide reasonable standard remote assistance to Customer in order to implement the Kincaid software applications listed on the Order (the “Software Applications”).
- User Support. Kincaid IT will provide Customer with access to email technical support for questions 7 days per week. Kincaid IT will use reasonable efforts to respond to requests within 24 hours. Kincaid IT will provide chat support during normal business hours, 8AM to 6PM, Central Time, Monday through Friday. Support outside of normal business hours will be subject to availability and an additional fee may apply. Support includes updates to the Software Applications that Kincaid IT makes available from time to time (“Updates”) to its customer base. Updates include bug fixes, error corrections, and minor improvements to the Software Service. Kincaid IT may issue a full upgrade to the Software Service (“Upgrade”). Upgrades provide significant additional functionality and are outside the scope of this Agreement. Upgrades are made available to Kincaid IT customers for an additional fee described in a new order for such Upgrade.
TIME OF DAY
M-F 8AM to 6PM (CST)
Email, Chat, Phone
Immediate to 4 hours
Outside of normal business hours
Up to 36 hours
- Service Level Agreement. Kincaid IT will make the Software Applications available to Customer 99% of the time during normal business hours of 8AM to 6PM, Central Time, Monday through Friday (the “Availability Standard”) excluding scheduled and emergency maintenance hours. The Availability Standard excludes planned outages and any downtime caused by third party service providers. The Availability Standard does not apply to Software Applications provided under a trial period or proof of concept or designated as a “beta” version.
2. Payment of Fees
- Customer will pay Kincaid IT the applicable fees as set forth on the Quote. Set Up and Data Transfer Fees must be paid in advance of services being implemented. Monthly fees and time and materials fees are due on the first day of each calendar month. Annual fees are due in advance of performance of Services. To the extent applicable and utilized, Customer will pay Kincaid IT for consulting, integration or other professional services. Customer will make all payments through the identified payment method and in accordance with the terms on the Quote and these Terms of Service. If not otherwise specified, payments will be due within 30 days of invoice. Fees paid are non-refundable.
- Kincaid IT may suspend Customer’s access to the Services if Customer is more than 10 business days late on a payment. Customer will pay a late fee on any amount that is not paid when due that will be calculated at an interest rate of 1.5% per month on any such outstanding balance, or the maximum permitted by law, whichever is less, from the date due, plus all expenses of collection.
- Customer will be billed, and payments will be made, in U.S. dollars. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Customer will be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Kincaid IT’s net income.
3. Term and Termination
- These Terms of Service become effective upon acceptance of the first Quote. Unless earlier terminated as provided below, these Terms of Service will automatically expire when no Quote is effective. If a trial period or proof of concept is indicated under “Additional Terms” in the Quote, the term of such trial period will be 30 days or such other period as is indicated on the Quote and the initial one-year term will immediately commence after such trail period unless Customer gives notice of its intent to terminate prior to the end of the trial period.
- Either party may terminate this Agreement upon 30 days’ notice if the other party breaches any material term of these Terms of Service and fails to cure such breach within 30 business days after notice of such breach. Material breach by the Customer includes any breach of Customer’s payment obligations or unauthorized use by Customer of the Kincaid IT Technology or Service.
- On termination of this Agreement for any reason, any amounts owed to Kincaid IT under this Agreement before such termination or expiration will be immediately due and payable, all licensed rights granted will immediately cease to exist, and Customer must promptly discontinue all use of the Kincaid IT Technology and erase all copies of the Kincaid IT Technology. Customer will pay a termination fee equal to the amount of months remaining in the Term multiplied by the applicable Monthly Service Fees.
4. Permitted Uses, Restrictions, and Ownership
- Customer is solely responsible for (i) providing and maintaining the hardware and software necessary to access and use the Services including the rights to access any Google API’s and (ii) making available such personnel and information as may be reasonably required, and taking such other actions as Kincaid IT may reasonably request to provide the Services.
- Customer will not (and will not permit others to) (i) modify or interfere with the Software Applications or the Kincaid IT Technology; (ii) reverse engineer, decompile, or attempt to discover the source code of the Software Applications, or the Kincaid IT Technology; or (iii) resell or otherwise use the Software Applications for timesharing or service bureau purposes or for any purpose other than its own internal non-commercial purposes unless expressly agreed in advance in writing. Non-production and Proof of Concept/Evaluation Services may not be used in a production environment. Customer is fully responsible for providing its own backups.
- As between the parties, Kincaid IT (and its licensors, where applicable) own all right, title, and interest, in and to the Software Applications, Kincaid IT Technology, and any suggestions, ideas, enhancement requests, recommendations, feedback, or other information provided by Customer which Customer hereby assigns to Kincaid IT. Customer represents and warrants that: (i) Customer owns or has the right to use all customer data accessed by Kincaid in connection with the Services (“Customer Data”); (ii) use of Customer Data in connection with the Services does not violate any third party rights; and (iii) Customer has the right to provide Kincaid IT with access to Customer’s G Suite for Education Services.
- Kincaid IT acknowledges that as between the parties, Customer owns all right, title and interest in and to the Customer Data, provided, however, that Customer grants Kincaid IT the right to use any and all Customer Data in blinded or aggregated form for the purpose of data analysis, compilation, interpretation, study, reporting, publishing, improvement of the Software Service, product and service development, and other such purposes.
- Except as expressly set forth herein, Kincaid IT alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Software Service and Kincaid IT Technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Software Service, which are hereby assigned to Kincaid IT. Customer will not copy, distribute, reproduce, or use any of the foregoing except as expressly permitted under this Agreement. All rights not expressly granted to Customer are reserved by Kincaid IT and its licensors.
- If Customer is a school district (“District”), no change order or other form of order of directive will be issued by the District requiring additional compensable Services to be performed by Kincaid IT, which work causes the aggregate amount payable under this Agreement to Kincaid IT to exceed the amount appropriated for the original Agreement, unless the Kincaid IT is given written assurance by the District that lawful appropriations to cover the costs of the additional work have been made or unless such work is covered under a remedy-granting provision in the Agreement.
- Software Applications designated as a “beta” version may not be used in a production environment and are for evaluation and testing purposes only.
- Each party (the “Receiving party”) understands that the other party (the “Disclosing party”) has disclosed or may disclose information relating to the Disclosing party’s technology or business (“Confidential Information” of the Disclosing party).
- The Receiving party agrees: (i) not to divulge to any third person any such Confidential Information other than subcontractors who are subject to confidentiality obligations no less protective of Confidential Information than this Agreement, (ii) to give access to such Confidential Information solely to those employees and subcontractors with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Confidential Information. The Disclosing party agrees that the foregoing will not apply with respect to any information that the Receiving party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving party, or (b) was in its possession or known by it prior to receipt from the Disclosing party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing party. Nothing in this Agreement will prevent the Receiving party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving party gives the Disclosing party reasonable prior notice of such disclosure to contest such order.
- Kincaid IT acknowledges that, subject to the exceptions listed in this Section 5, Customer Data is Customer’s Confidential Information. Kincaid will also protect Customer’s G Suite login credentials as Confidential Information. Customer acknowledges that all training materials and Software Applications and any related documentation are Kincaid’s Confidential Information.
- The parties will have the right to disclose the existence but not the terms and conditions (including without limitation pricing) of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure, or is included in a filing required to be made by a party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers. Kincaid will assist District in complying with any “Open Records” or “Shine the Light Law” requests.
Kincaid IT will indemnify and hold Customer and its officers, directors, employees, attorneys, and agents harmless from and against any and all costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) each to the extent paid to an unaffiliated third party to the extent arising out of or in connection with such third-party’s claim alleging that the Kincaid IT Technology directly infringes a U.S. copyright. Notwithstanding the foregoing, Kincaid IT will have no obligation with respect to any infringement claim based upon any modification of the Kincaid IT Technology by Customer or any use of the Kincaid IT Technology (i) not in accordance with the applicable documentation; or (ii) in combination with other products, equipment, software, or data not supplied by Kincaid IT. To the extent permitted by applicable law, Customer will indemnify and hold Kincaid IT and its officers, directors, employees, attorneys, and agents harmless from and against any and all costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) each to the extent paid to an unaffiliated third party to the extent arising out of or in connection with such third-party’s claim relating to the use of the Software by Customer, excluding any claim for which Kincaid IT Is obligated to Indemnify Customer pursuant to this paragraph.
7. Warranties and Warranty Disclaimer
Kincaid IT represents and warrants that the Services will be provided in a professional and workmanlike manner. If Kincaid IT breaches this warranty, Customer may, as its sole remedy, request that Kincaid IT promptly correct any such failure of to provide the applicable Service at no additional charge. Except for the above warranty, Kincaid IT provides all services to Customer without warranties, express or implied. Kincaid IT and its licensors do not represent or warrant that (a) the use of the Services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system, or data, (b) the Services will meet requirements or expectations, (c) any results or stored Customer Data will be accurate or reliable, (d) errors or defects will be corrected, (e) the Services or the server(s) that make the Software Applications available are free of viruses or other harmful components; (f) the Services or results will meet any regulatory approvals or requirements. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Kincaid IT and its licensors. Kincaid IT makes no warranties, express or implied, as to Software Applications provided under a trial period or proof of concept or designated as a “beta” version.
8. Limitation of Liability
In no event will Kincaid IT’s aggregate liability arising from or relating to this Agreement exceed the amounts actually paid by and payable by Customer in the twelve (12) month period immediately preceding the event giving rise to such liability. In no event will either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including direct or indirect damages for loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this agreement, including but not limited to the use or inability to use the Services, or for any content obtained from or through the Services, any interruption, inaccuracy, error or omission in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages. In no event will Kincaid IT be liable for the acts or omissions of Customer in its use of the Services. Software Applications provided under a trial period or proof of concept or designated as a “beta” version are provided “as is” and you assume all risks arising out of your use of such Software Applications.
9. Force Majeure
Neither party will be liable to the other party for any default (other than failure to pay money) hereunder, for so long as such default is caused by an event beyond such parties control, including, without limitation, acts or failures to act of the other party; strikes, labor or civil disputes; component shortages; unavailability of transportation; fires, war, governmental requirements; delays impacted by the COVID19 pandemic; and acts of God. In the event of threatened or actual nonperformance as a result of any of the above causes, the non-performing party will exercise commercially reasonable efforts to avoid and cure such nonperformance.
Either party may assign or transfer this Agreement in connection with a sale of substantially all of the business to which this Agreement relates without the other party’s prior written consent. Except as expressly provided for in this section, neither party may assign this Agreement. This Agreement will be governed by Kansas law. No text or information set forth on any other purchase order, preprinted form or document (other than an Quote) will add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. During the Software Service Term, Customer authorizes Kincaid IT to identify Customer as a Kincaid IT customer on Kincaid IT’s website and in Kincaid IT’s marketing materials. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Any modification or amendment of this Agreement will be in writing signed by the parties. The Software Applications and any accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable, and are commercial products, licensed on the open market at market prices, and were developed entirely at private expense and without the use of any government funds. Any use modification, reproduction, release, performance, display, or disclosure of the Software Service by any government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. No license to the Software Applications is granted to any government requiring different terms. Customer will not use the Software Applications to provide services to any public sector or government end user where such would affect Kincaid IT’s rights in the Software Applications or require any affirmative action to be taken by Kincaid IT due to governmental mandates or flow down regulation. This Agreement, together with any applicable Quote or exhibits, comprises the entire agreement between Customer and Kincaid IT regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. The following Sections will survive any expiration or termination of this Agreement: Section 2 “Payment of Fees”, Section 4 subparts (b)-(e) “Permitted Uses, Restrictions, and Ownership”, Section 5 “Confidentiality, Section 8 “Limitation of Liability” and Section 10 “Miscellaneous.”