Acceptance by Customer (as named on the signature page) of any proposal, quotation or invoice (a “Proposal”) issued by Kuno Creative Group, LLC (“KCG”), to which these terms and conditions are attached or by reference made a part of, shall constitute an agreement between Customer and KCG with respect to the responsibilities of KCG and Customer pursuant to the Proposal (the “Agreement”). The Agreement shall consist of the Proposal and these terms and conditions, together with any modifications made in accordance with the terms hereof. No terms or conditions, other than those stated herein, and no agreement or understanding in any way modifying the terms and conditions stated herein, shall be binding upon KCG unless made in writing and signed by KCG's duly authorized officer. Written or verbal acceptance of any Proposal and/or the acceptance of deliverables or services by Customer shall constitute Customer's assent to these exclusive terms and conditions with respect to such Proposal. This order and contract shall be governed exclusively by, and be construed in accordance with, the laws of the State of Ohio (except the conflicts of laws provisions thereof).
Ownership. The Agreement does not transfer from KCG to Customer any right, title or interest in or to KCG Technology except for the limited license granted below, and all right, title and interest in and to KCG Technology will remain solely with KCG. Customer agrees that it will not, directly or indirectly, distribute, reproduce, disclose, sell, reverse engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets from KCG Technology, KCG personnel or materials, and/or KCG’s third party vendor-provided materials. Customer is solely responsible for the compliance with the Agreement by its employees, agents, representatives and Web Site users. “KCG Technology” means KCG's proprietary technology, including any and all software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic, other than marketing materials delivered to Customer), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by KCG or licensed to or through KCG from a third party), and specifically including any derivatives, improvements, enhancements or extensions thereof conceived, reduced to practice, or developed during the term of the Agreement by either KCG or Customer that are not uniquely applicable to Customer or that have general applicability in the art.
Limited Right to Use License. KCG agrees to grant Customer a limited, personal, non-transferable, and non-exclusive right to use license for KCG Technology developed by KCG and its contractors for delivery to or use by Customer pursuant to the Agreement, subject to the following conditions. This license shall be for Customer’s internal use only and Customer is expressly prohibited from assigning, sub-licensing, selling or otherwise exploiting such right to use in any manner at any time. This license is non-exclusive meaning that KCG reserves all right, title and interest in and to such KCG Technology, including the right to use, sell, license, transfer, assign or otherwise exploit the same. This license is also subject to the provisions below relating to Third Party Vendors (defined below).
Third Party Products. KCG may provide Customer access to other third party software and/or services ("Third Party Products") through reseller relationships or other service agreements or end-user licenses KCG has established with certain commercial vendors, including without limitation, Microsoft Corporation ("Third Party Vendors").
Third Party Licenses. Customer acknowledges and agrees that it shall be bound by the terms of any agreement entered into by KCG with Third Party Vendors (including shrink wrap or other standard licenses and agreements) for hardware or software provided by KCG for use as specified in the Proposal. In certain cases, the Third Party Vendor may require Customer to execute a separate instrument evidencing Customer’s agreement to be bound by the terms and conditions issued by such Third Party Vendor. If the Agreement is terminated for any reason, KCG reserves the right to also terminate any such licenses with Third Party Vendors obtained through KCG.
Ownership and Transfer of Data and Files. If the Work includes creation of a Web Site, or content for a Web Site, Customer shall own the publicly viewable content of the Web Site such as text, graphic images and logos (including those designed for Customer by KCG), news articles, blogs, frequently asked questions, community forums, and streaming media files subject to the license(s) and restrictions imposed by third parties for any of the Web Site content; provided, however, Customer shall not have any ownership rights in any KCG Technology. If Customer chooses to transfer this data to another server for hosting or other purposes, Customer may request assistance from KCG in the transfer process (at additional service charges). In the event of termination of the Agreement by either party or a permanent disruption in service due to the cancellation or dissolution of any of the third party hosting providers under contract by KCG to provide the services under the Agreement, upon transfer of any data or files from the Web Server(s) to any other server, any and all KCG responsibilities for security, reliability or performance of that data or files are thereafter null and void. KCG will no longer be responsible for maintaining that data or files on the server or server(s) identified for the hosting and publication of the Web site(s) and will have the right to delete it after 30 days following the transfer without any liability or obligation to Customer.
Copyrights and Trademarks. Each party does hereby represent to the other and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished by such providing party or by third parties on behalf of such party for inclusion in the Customer Web site are owned by the providing party, or the providing party has permission from the rightful owner to use each of these elements, and the providing party will indemnify, hold harmless, protect, and defend the other party from any claim or suit arising from the use of such materials. Whichever party creates or modifies the Web site content containing such elements will label it with Copyright information and include any Legal/Privacy statements requested by the owner thereof. Customer unconditionally guarantees that it will not use Copyrighted or Trademarked materials or content without first notifying KCG and receiving the necessary permissions.
Control and Ownership of IP Addresses. KCG shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer, and KCG reserves, in its sole discretion, the right to change or remove any and all IP numbers and addresses.
Access to Site and Information. Customer will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for KCG to timely and fully complete the Work. KCG is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Customer or others that are not agents or KCG, and KCG has no obligation to investigate facts or conditions not disclosed to it by Customer.
Indemnification. Customer agrees to indemnify, defend and hold harmless KCG and its affiliates against any losses, costs, expenses (including, but not limited to, reasonable attorneys' fees), claims, damages, liabilities, penalties, actions, proceedings or judgments which arise out of or relate to any content provided by Customer or the users of the Web Site or the breach of any of the terms and conditions of the Agreement by Customer.
Confidential Information. “Confidential Information” means any material, data, or information in whatever form or media of a party to the Agreement that is provided or disclosed to the other, except for any information that is: (a) publicly available or later becomes available other than through a breach of the Agreement; (b) known to the Receiving Party (defined below) or its employees, agents, or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents, or representatives subsequent to such disclosure; or (c) subsequently lawfully obtained by the Receiving Party or its employees, agents, or representatives from a third party without obligations of confidentiality. Confidential Information shall include the following categories of information, whether disclosed orally or in writing and whether or not marked as confidential: financial and operational information and other matters relating to the operation of the parties’ business, customer usage or requirements, business and customer usage forecasts and projections, accounting, finance or tax information, pricing information, and the KCG Technology and all components of the Web Site other than the publicly viewable content of the Web Site (which are Confidential Information of KCG only). The party that has received Confidential Information (the “Receiving Party”) shall exercise the same degree of care and protection with respect to the Confidential Information of the other party (the “Disclosing Party”) that it exercises with respect to its own Confidential Information and shall not directly or indirectly use (for purposes other than permitted herein), disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Disclosing Party. Notwithstanding the above, either party may disclose Confidential Information if so required by law (including court order or subpoena), provided that such party affords the Disclosing Party with reasonable prior notice and opportunity to oppose such disclosure or seek a protective order regarding such Confidential Information. Notwithstanding the foregoing: (a) KCG will not be precluded by the Agreement from rendering services or developing or supplying work products to others that are competitive with, or functionally comparable to, the services rendered and KCG Technology provided hereunder; and (c) KCG shall not be restricted in its use of ideas, concepts, know-how, methodologies, and techniques acquired or learned in the course of its activities hereunder.
Termination For Cause. In addition to any other rights it may have under this Agreement or applicable law, KCG may immediately terminate this Agreement or suspend service, effective without notice, in the event of (i) Customer’s failure to make any payment within 10 days of the due date, or (ii) Customer's breach or failure to comply with any other obligation of Customer under the Agreement and its failure to cure such breach within ten (10) days after receipt of written notice of same. Customer may terminate this Agreement if KCG breaches any material term or condition of this Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same.
Force Majeure. KCG is not liable for any failure to perform, or delay in performance, due to circumstances beyond its reasonable control, including but not limited to, riots, wars, fires, floods, explosions, strikes, acts of nature, and acts of government. If KCG’s services are interrupted due to any such force majeure cause, Customer and KCG shall negotiate a reasonable extension of time for KCG’s performance and payment of any additional costs to be incurred by KCG as a result thereof.
Title and Risk of Loss. Title to goods shall pass upon payment in full therefor, and risk of loss shall pass to Customer upon delivery to Customer.
No Third Party Rights. KCG and Customer agree that, except as otherwise expressly provided in the Agreement or the terms and conditions of use of any Third Party Products, there shall be no third party beneficiaries to the Agreement, including but not limited to the insurance providers for either party or the clients of either party.
Non-Solicitation. During the term of the Agreement and for a period of 180 days thereafter, Customer shall not solicit for employment or hire employees of KCG without obtaining the prior written consent of KCG; provided, however, that this restriction shall not prohibit either party from conducting general solicitations in newspapers in connection with such party’s hiring.
GOVERNING LAW; VENUE. THE AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THE AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS LOCATED IN LORAIN OR CUYAHOGA COUNTY, OHIO, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
Severability. In the event any provision of the Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Agreement will remain in full force and effect.
Waiver. The waiver of any breach or default of the Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
Assignment. Customer may not sell, assign or transfer its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of KCG, and any attempted assignment or delegation without such consent will be void. KCG may delegate the performance of certain Services or the provisions of certain deliverables to third parties, including KCG's wholly owned subsidiaries. The Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties.
Relationship of Parties. KCG and Customer are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between KCG and Customer. Neither KCG nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
Miscellaneous. The Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. The Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of the Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in the Agreement, the Agreement may be changed only by a written document signed by authorized representatives of both parties. All notices and other communications hereunder will be in writing and will be sent either by (a) certified mail, postage prepaid, return receipt requested; (b) an overnight express courier service that provides written confirmation of delivery; or (c) facsimile with written confirmation by the sending machine or with telephone confirmation of receipt, addressed to the last address provided by such party.