TERMS OF SERVICE - last updated June 30, 2020
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.
- Rights and License Granted.
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.
- 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
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.
- No Customization.
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”.
- 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
- Integration to Third Party Products.
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.
- Terms of Payment.
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
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.
- Representations and Warranties.
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.
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.
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.
- Limitation of Liability.
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.
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.
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.
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
- 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.
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:
access to Personal Information to Representatives who have a need to know to
provide the services contemplated under these Terms of Service (the “Purpose”);
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
(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;
(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.
- Additional User Responsibilities.
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.
- Miscellaneous; General Terms.
obligations under Section 6 and Sections 8, 9, 10 shall survive termination or
expiration of these Terms of Service.
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
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
notices required to be sent hereunder shall be delivered via email to email@example.com 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
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