KikBak Terms of Service

I. General Terms and Conditions

1. Subscription to KikBak Product

During the Term and in accordance with this Agreement, Customer may access and use the products offered by KikBak (each a “Product”), which Customer subscribed to, whether by subscription, free trial or promotion, as referenced in the order form, invoice, executed quote, or, for certain self-serve products, via confirmation email from KikBak (the “Order Form”). Each Product may include updates, cloud-based and support services, applications or documentation. Each of these are subject to the terms of this Agreement as applicable. Customer is responsible for all actions taken under its KikBak account credentials, regardless of whether such actions are taken by Customer, its employees or a third party. Customer will safeguard all account credentials (including any passwords and payment method details) in its possession or under its control. KikBak is not liable for any loss or damage arising from any unauthorized use of Customer’s account.

2. Grant of License

During the Term, KikBak grants Customer a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use, and to permit its employees and all other users who access and use the Products on Customer’s behalf (collectively, the “Users”) to access and use, the Products to which Customer has subscribed, on the terms set forth in this Agreement. Customer agrees that all rights, title and interest in and to all the intellectual property rights in the Products, and all modifications, extensions, scripts and other derivative works of the Products provided or developed by KikBak, including the Beta Technology, are owned exclusively by KikBak or its licensors. All rights not granted to Customer in this Agreement are reserved by KikBak.
3. License Restrictions
Customer and any Users shall not (and shall not allow any User or third party to): (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Products, by any means whatsoever; (ii) distribute viruses or other harmful or malicious computer code via or into the Products; (iii) engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Products; (iv) remove any product identification, copyright or other notices from the Products; (v) sell, lease, lend, assign, sublicense, grant access or otherwise transfer or disclose the Products in whole or in part, to any third party; (vi) use the Products for timesharing, service bureau or hosting purposes or otherwise use, resell, sublicense, distribute or transfer or allow others to use the Products to or for the benefit of third parties; (vii) modify or incorporate into or with other software or create a derivative work of any part of the Products, unless agreed to in writing by KikBak; (viii) use the output or other information generated by the Products for any purpose other than as contemplated by this Agreement; (ix) use the Products for any use other than Customer’s internal business use; (x) use unauthorized modified versions of the Products, including without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Product; (xi) use the Products in any way that is contrary to KikBak’s Acceptable Use Policy, as such policy may change from time to time (the “Acceptable Use Policy”); or (xii) use the Products in any way that is contrary to applicable local, state/provincial, federal, regional and foreign laws, including without limitation those relating to fiscal laws and VAT regulations, as well as privacy, data protection, electronic communications and anti-spam legislation. KikBak retains all title to, and except as expressly licensed herein, all rights to the Products, all copies, derivatives and improvements thereof, and all related materials.

4. Term of Agreement

4.1.  Unless otherwise agreed to in writing, the “Initial Term” shall mean the duration identified in the Order Form, beginning on the date identified in the Order Form (the “Subscription Start Date”). If the Subscription Start Date is not explicitly nor implicitly identified in the Order Form, the Subscription Start Date shall be the date Customer executes, where applicable, the initial Order Form, unless otherwise agreed to in writing. Some software Products may be made available to Customer on a date prior to the Subscription Start Date identified in the Order Form. If Customer uses such software Products to process taxable business transactions before such identified Subscription Start Date, then the Subscription Start Date will thereby be amended to such earlier date.
4.2. Upon expiration of the Initial Term and unless otherwise stated in the Order Form or herein, this Agreement will automatically renew for a duration equal to the Initial Term (each a “Renewal Term”, the “Current Term” being the Initial Term or the then-current Renewal Term (as the case may be); and the Initial Term and all Renewal Terms collectively, the “Term”) until terminated by Customer or KikBak by delivery of written notice to the other party at least ninety (90) days prior to the end of the Current Term, or such period of notice equal to the Current Term where the Current Term is less than ninety (90) days. If no Order Form has been provided, the minimum period of notice required to be given shall be thirty (30) days. In the case of Products licensed on a trial basis, the Term of this Agreement shall be limited to the duration of the trial period identified in the Order Form. Except as otherwise specified herein, Customer may not terminate this Agreement prior to the expiration of the Term.

5. Fees and Payment

5.1. Customer shall pay KikBak the fees (“Fees”) specified in the Order Form or otherwise arising under this Agreement, in accordance with the timing and currency specified in the Order Form or this Agreement. Fees shall include, but are not limited to, applicable fees relating to Customer’s use of a payment provider other than KikBak Payments. If no Order Form has been provided, the Fees will be as set out on the websites for the relevant Products. Unless required by applicable law, all payments by Customer to KikBak under this Agreement are non-refundable and made via the payment method specified by Customer in the Order Form, or as otherwise agreed in writing by the parties. Customer shall undertake any additional actions reasonably requested by KikBak to implement any automated Fee payment process. Any amounts past due shall accrue interest at a rate which is the lesser of: one and a half percent (1.5%) per month or the maximum rate allowable by law. Any assessment of late fees shall be without prejudice to KikBak’s right to suspend Customer’s access to the Products. Any applicable goods and services or sales taxes will be added to Fees owing pursuant to this Agreement.
5.2. Customer acknowledges and agrees that by executing an Order Form, Customer is obligated to pay all of the Fees identified in (i) the Order Form or website (as applicable), and (ii) this Agreement, for the duration of the Current Term, and that any software subscription discounts or hardware discounts offered to Customer and/or identified on the Order Form are contingent upon the foregoing. Similarly, Customer acknowledges and agrees that, by renewing their subscription, whether implicitly or explicitly, Customer is obligated to pay all of the Fees due under the renewed contract at the then-current prices for the duration of the Renewal Term. Customer further acknowledges and agrees that any discounts offered under the initial Order Form shall not carry over or pertain to the Renewal Term, unless otherwise agreed to in writing.
5.3 KikBak Payments. Provided Customer (i) uses the Products (ii) is located in a jurisdiction in which KikBak Payments is offered and (iii) is eligible for KikBak Payments, Customer must use KikBak Payments unless otherwise agreed to by KikBak in writing.
5.4 Transaction Fees. If Customer falls within (i), (ii) and (iii) above and processes transactions through a payment processing service other than KikBak Payments, Customer will be charged to a monthly Fee for each month in which Customer processes transactions through such service, which fee shall be calculated based on Customer’s estimated average monthly transaction.

6. Confidential Information

KikBak and Customer (each a “Receiving Party”) shall each retain in confidence all information received from the other party (the “Disclosing Party”) pursuant to or in connection with this Agreement, the Products or the Beta Technology, that the Disclosing Party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under this Agreement. Each party shall treat the terms and conditions of this Agreement as confidential; however, either party may disclose such information in confidence to its legal and financial consultants as required in the ordinary course of that party’s business. Notwithstanding the foregoing, the restrictions set forth above will not apply to (i) information previously known to the Receiving Party without reference to the Disclosing Party’s Confidential Information, (ii) information which is or becomes publicly known through no wrongful act of the Receiving Party, (iii) information that is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, or (iv) information required to be disclosed pursuant to applicable law by enforceable orders of the court or other governmental authority. Customer shall ensure that its Users fully comply with the terms of this Section and shall be responsible for any damages suffered by KikBak as a result of a User’s failure to do so.

7. Customer’s Representations

Customer represents and warrants that currently and throughout the Term (i) Customer is fully authorized to enter into this Agreement and that Customer and any Users are fully authorized to utilize the Products to which Customer has subscribed, (ii) Customer and any Users are and will remain in compliance with all KikBak policies, applicable laws and regulations with respect to its and their use of the Products and activities related to this Agreement, including but not limited to fiscal and privacy laws; and (iii) if Customer or any of its Users imports lists into the Products for the purpose of sending electronic communication (e.g., email, text messages), or otherwise collects electronic addresses for the purpose of sending electronic messages, then Customer warrants that each person on such list has previously opted-in to receive promotional electronic communications from Customer (where applicable) and that the content of such communications by Customer will comply with applicable laws and regulations.

8. Customer Content, Privacy and Intellectual Property

8.1. “Customer Content” means photos, images, graphics, written content, audio, files, materials, information, or any other data that Customer or its Users input into the Products for processing in connection with this Agreement.
8.2. Customer retains all right, title, and interest in the Customer Content. Customer grants KikBak a worldwide, royalty-free, sublicensable, transferable, and non-exclusive license to use, access, copy, reproduce, modify, create derivative works of, publish, communicate, transmit, translate, display, and/or otherwise exploit the Customer Content for the purpose of providing, operating, promoting, or improving the Products.
8.3. Customer may select the personal information (“Personal Data”) it inputs into the Products at its sole discretion; KikBak has no control over the nature, scope, origin, and/or the means by which Customer acquires Personal Data processed by the Products. KikBak will comply, and will ensure that its personnel comply, with the requirements of applicable privacy laws and regulations governing the Personal Data in KikBak’s possession or under its control. Customer is solely responsible for ensuring that it complies with any legal, regulatory or similar restrictions applicable to the types of data Customer elects to process with the Products. Customer remains responsible for properly handling and processing notices regarding Personal Data of Customer’s clients and Users.
8.4. The Products grant Customer the ability to independently backup and archive Customer Content. Accordingly, Customer is responsible for performing regular backups of Customer Content. Nevertheless, KikBak will regularly perform backups of Customer Content stored in the Products. KikBak will assist Customer in recovering and restoring Customer Content to the Products to the extent commercially feasible. Customer understands and agrees that KikBak is not responsible for any loss or corruption of Customer Content or other software.
8.5. KikBak uses and protects Personal Data in accordance with KikBak’s Privacy Policy.
8.6. It is the policy of KikBak to respect the intellectual property rights of others. KikBak does not condone the unauthorized reproduction or distribution of third-party intellectual property.
8.7. The Privacy Policy, the DPA, the Acceptable Use Policy and the Infringement Policy are incorporated into this Agreement by reference.

9. Feedback

Customer agrees that any materials that it provides to KikBak, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, modifications, improvements, original or creative materials or other information regarding KikBak or the Products or the Beta Technology, whether such materials are provided in email, feedback forms, or any other format (the “Feedback”), shall belong exclusively to KikBak, without any requirement to acknowledge or compensate Customer. Customer agrees to assign, and hereby assigns, all right, title, and interest worldwide in the Feedback and the related intellectual property rights to KikBak and agrees to assist KikBak, at KikBak’s expense, in perfecting and enforcing such rights. KikBak may disclose or use Feedback for any purposes whatsoever without any obligation to Customer.

10. Beta Testing Project

10.1. For evaluation and testing purposes only (“Beta Testing Project”), KikBak may grant Customer a personal, non-exclusive, non-transferable, limited license to use certain technology, support services, accessories, and hardware (collectively, the “Beta Technology”). Customer’s participation in a Beta Testing Project is voluntary.
10.2. If Customer agrees to the Beta Testing Project, Customer shall (i) test and evaluate the Beta Technology as requested by KikBak, (ii) familiarize itself with the Beta Technology information provided by KikBak and to only use or test the Beta Technology as directed, (iii) notify KikBak of any and all functional flaws, errors, anomalies, and problems directly or indirectly associated with the Beta Technology known to, or discovered by Customer, (iv) respond to any and all reasonable inquiries, questionnaires, and other test documents submitted by KikBak and (v) designate to KikBak, in writing, an employee or representative who will serve as the single technical contact and who will be responsible for maintaining communication with KikBak. In addition, Customer agrees to bear all incidental costs (such as, costs for Internet and phone services, accessories, etc.) associated with its testing of the Beta Technology, unless otherwise agreed to in writing by both parties. Customer has the obligation to maintain backups of its own data. Customer agrees and acknowledges that, following termination of the Beta Testing Project, KikBak shall have no obligation to transfer Customer Content to any other KikBak product or service, including with respect to final release of the Beta Technology.
10.3. KikBak has no obligation to develop or provide any updates or revisions to the Beta Technology, and KikBak reserves the right to alter or adjust service specifications for the Beta Technology as it deems necessary or desirable. Customer understands and acknowledges that Customer will not, unless otherwise agreed to in writing, receive any payment, compensation or discount for participating in, or for providing any Feedback, comments, evaluations, reports or any other services during a Beta Testing Project. Customer shall maintain backups of its own data. Customer agrees and acknowledges that, following termination of the Beta Testing Project, KikBak shall have no obligation to transfer Customer Content to any other KikBak product or service, including with respect to final release of the Beta Technology.
10.4. The Beta Technology provided by KikBak is proprietary to KikBak and/or its licensors. Customer agrees and acknowledges that nothing contained in this Agreement shall be construed as granting any ownership or intellectual property rights to any Beta Technology, Feedback or Confidential Information. All applicable rights in all copyrights, trademarks, trade secrets, trade names, patents and other intellectual property rights in or associated with the Beta Technology are and will remain in KikBak and Customer shall have no such intellectual property rights in the Beta Technology. Customer will not make, have made, use or sell for any purpose any product or item using, incorporating or derived from any Beta Technology or Confidential Information. Customer may not copy or reproduce the Beta Technology or reverse engineer, alter, modify, disassemble or decompile the Beta Technology, or any part thereof, without KikBak’s prior written consent.

11. Third-Party Services

“Third-Party Services” are products, applications, services, software, networks, systems, directories, websites, databases and information from third parties, including from KikBak Payments USA Inc., that one or more Products link to, or which Customer may connect to or enable in conjunction with one or more Products. Customer may decide to enable, access or use any Third-Party Services (as defined above). Customer agrees that access and use of such Third-Party Services shall be governed solely by the terms and conditions of such Third-Party Services, and that KikBak is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third-Party Services, including, without limitation, their content or data practices (including with regards to Customer Content and Personal Data) or any interaction between Customer and the provider of such Third-Party Services, regardless of whether or not such Third-Party Services are provided by a third party that is a member of a KikBak partner program or otherwise designated by KikBak as “certified”, or “approved” by or “integrated” with KikBak. Any use by Customer of Third-Party Services shall be solely between Customer and the applicable third-party provider. Customer irrevocably waives any claim against KikBak with respect to such Third-Party Services. KikBak is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third-Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third-Party Services.

12. Maintenance Activities and Product Changes

12.1. It may be necessary for KikBak to perform scheduled and/or unscheduled repairs or maintenance, or remotely patch or upgrade the Product. This may temporarily degrade the quality of the services or result in a partial or complete outage of the Product. KikBak will endeavor to carry out such work during times that will cause the least disruption to Customer’s business. Customer shall cooperate, if necessary, to perform such work.
12.2. KikBak may, at any time and in its sole discretion, add to, remove, change or discontinue the Products or any component or version of the Products (the “Product Changes”), which may require Customer to take certain actions including, but not limited to, installing certain patches, fixes or updates, upgrading to a new version of a Product and/or migrating to an alternative Product. Such Changes may be made for reasons including, but not limited to:  (i) to comply with applicable law or regulation, (ii) for security reasons, (iii) due to changes imposed by a third party supplier, and/or (iv) due to the termination of our relationship with a third party supplier which is material for the provision of the Products.

13. Termination and Suspension

13.1. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by giving the breaching party written notice specifying the nature of the breach in reasonable detail and the non-breaching party’s intention to terminate (a “Termination Notice”). If the breach has not been cured within the period ending thirty (30) days following delivery of the Termination Notice, then this Agreement shall automatically terminate.
13.2. Notwithstanding the foregoing, KikBak reserves the right, at any time and without notice, to terminate this Agreement if Customer violates the license restrictions under Section 3 of the Agreement.
13.3. Notwithstanding the foregoing, KikBak may suspend Customer’s access to the Products immediately without notice if KikBak, in its sole discretion, believes: (i) such suspension is required by law; (ii) there is a security or privacy risk to Customer; (iii) Customer is infringing or violating the rights of third parties, or acting in a manner that is abusive, profane or offensive; (iv) Customer does not pay its Fees or any invoices in a timely manner; or (v) Customer is in breach of any material provision of this Agreement, including its license restrictions or confidentiality obligations. Any suspension of Customer’s access to the Products will not limit or waive KikBak’s rights to terminate this Agreement or Customer’s access to the Products.
13.4. Upon termination of this Agreement, Customer shall discontinue its use of the Product(s). Notwithstanding the foregoing, termination of this Agreement by KikBak shall not limit Customer’s obligation to pay all of the applicable Fees, nor restrict KikBak from pursuing any available remedies, including injunctive relief. Customer agrees that following termination of Customer’s account and/or use of the Product, KikBak may immediately deactivate Customer’s account and delete Customer Content. Customer further agrees that KikBak shall not be liable to Customer nor to any third party for any termination of Customer’s access to the Product or deletion of Customer Content in accordance with this Agreement. Sections discussing license restrictions, Fees and payment, confidentiality, Customer representation, indemnification, and limitation of liability shall survive termination of this Agreement, along with any other provisions that are intended by their terms to survive.
13.5. Notwithstanding anything to the contrary in the Agreement, should the Agreement be terminated (a) by Customer prior to completion of the Current Term  for any reason other than breach by KikBak under Section 13.1, or (b) by KikBak for material breach by Customer under Section 13.1 or 13.2, Customer will be charged an early termination fee calculated as the sum of: (i) any non-recurring Fees relating to the terminated Agreement(s) which have not been paid to KikBak as of the effective date of termination; and (ii) any recurring Fees under the Agreement that would have otherwise become due during the remainder of the Current Term; and (iii) the difference between the list price (as indicated on our website), and the discounted price (if any) on either software and/or Hardware that the Customer may have received during or pertaining to the Current Term (collectively, the “Early Termination Fee”). The Customer (i) authorizes KikBak to collect the Early Termination Fee, and any applicable taxes due on such fee, according to the same payment methods and/or accounts for collecting amounts under the Agreement, and (ii) acknowledges that the Early Termination Fee shall be immediately due and payable in full. The Parties acknowledge and agree that the Early Termination Fee is a genuine and reasonable pre-estimate of the loss and damage suffered by KikBak in the event that the Customer terminates prior to completion of the Current Term and not a penalty.

14. Indemnification

14.1. Customer shall indemnify, defend and hold harmless KikBak and its officers, employees, and agents from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys’ fees (collectively “Costs”), to the extent that such Costs are attributable to any breach by Customer or any User, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in this Agreement.
14.2. KikBak shall indemnify, defend and hold harmless Customer and its officers, employees, agents and affiliates from and against all Costs, to the extent such Costs are attributable to the Products infringing or misappropriating any registered third-party intellectual property right, including trademarks, patents and copyrights if KikBak is notified promptly in writing and given authority, information, and assistance for the defense or settlement of any related proceeding.

15. Limitation of Liability

15.1. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, KIKBAK’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE TO SUCH LIABILITY WAS FIRST ASSERTED. IF AND TO THE EXTENT THAT CUSTOMER PARTICIPATES IN A BETA TESTING PROJECT, IN NO EVENT WILL KIKBAK’S TOTAL AGGREGATE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE BETA TESTING PROJECT EXCEED $100USD.
15.2. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THAT CUSTOMER PARTICIPATES IN A BETA TESTING PROJECT, IN NO EVENT SHALL KIKBAK BE LIABLE TO CUSTOMER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO THE BETA TECHNOLOGY OR THE TRANSACTIONS PROCESSED THEREIN.
15.3. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE PRODUCTS AVAILABLE TO CUSTOMER AND THAT, WERE KIKBAK TO ASSUME FURTHER LIABILITY OTHER THAN AS SET FOR HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SIGNIFICANTLY HIGHER.
15.4. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, KIKBAK WILL NOT BE LIABLE OR INDEMNIFY CUSTOMER IN ANY WAY FOR ANY DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM (i) CUSTOMER’S OMISSION TO INSTALL ANY PATCH, FIX, UPDATE OR UPGRADE, (ii)  ANY PRODUCT CHANGES PURSUANT TO SECTION 12.2 AND/OR (iii) CUSTOMER’S ALLEGED OR ACTUAL BREACH OF SECTION 7.

16. Disclaimer of Warranties

CUSTOMER ACKNOWLEDGES THAT (i) KIKBAK CANNOT GUARANTEE THE RESULTS GENERATED THROUGH THE PRODUCTS OR THE BETA TECHNOLOGY, OR THAT THE PRODUCTS OR THE BETA TECHNOLOGY WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT INTERRUPTION, (ii) THE PRODUCTS AND THE BETA TECHNOLOGY ARE PROVIDED “AS IS”, ON AN “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, AND KIKBAK HEREBY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY (a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (INCLUDING, FOR THE AVOIDANCE OF DOUBT, ANY WARRANTY THAT THE PRODUCTS ARE FISCALLY COMPLIANT WITHIN CUSTOMER’S JURISDICTION), (b) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, (c) WARRANTY OF TITLE OR NON-INFRINGEMENT; OR (d) STATUTORY REMEDY, AND (iii) KIKBAK IS NOT RESPONSIBLE FOR ANY PRODUCT CONFIGURATION SETTINGS OR PRODUCT CHANGES OR BETA TECHNOLOGY CHANGES APPLIED BY OR ON BEHALF OF CUSTOMER. KIKBAK EXPRESSLY DISCLAIMS ANY SPECIFIC SERVICE LEVEL WARRANTIES OR COMMITMENTS. REGARDLESS OF ANY OTHER TERM OF THIS AGREEMENT, NOTHING IN THIS AGREEMENT EXCLUDES OR PURPORTS TO EXCLUDE ANY STATUTORY RIGHT OR WARRANTY THAT MAY NOT BE EXCLUDED BY LAW. IF ANY PART OF THE PRODUCTS IS GOODS OR SERVICES TO WHICH A GUARANTEE UNDER THE AUSTRALIAN COMPETITION AND CONSUMER ACT 2010 (CTH) APPLIES, THEN SECTION 15 (LIMITATION OF LIABILITY) WILL NOT APPLY AND KIKBAK’S LIABILITY IS LIMITED, AT KIKBAK’S OPTION, TO: (A) REPAIR, REPLACEMENT OR RESUPPLY OF THE PRODUCT; OR (B) PAYMENT OF THE COST OF REPAIR, REPLACEMENT OR RESUPPLY OF THE PRODUCT.

17. Assignment and Subcontractors

Customer may not assign any of its rights or obligations under this Agreement without KikBak’s prior written consent. KikBak may, without Customer’s prior consent, assign its rights and obligations under this Agreement. Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and permitted assigns. KikBak shall be free to perform all or any part of this Agreement through one or more subcontractors.

18. Governing Law, Venue, Arbitration and Attorneys’ Fees

18.1. This Agreement shall be governed by and interpreted in accordance with the laws of the applicable jurisdiction indicated in Section III below. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the parties agree to submit to the exclusive jurisdiction of and venue in the applicable courts indicated in Section III below. Each party hereby waives all defenses of lack of personal jurisdiction and forum nonconveniens in connection with any action brought in the foregoing courts. The prevailing party in any action or proceeding brought under this Agreement shall be entitled to recover from the other party, in addition to all other relief, its reasonable attorneys’ and other experts’ fees and expenses incurred with respect to such action or proceeding.
18.2. Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (i) this Agreement; (ii) the Products, services or equipment provided by KikBak; (iii) oral or written statements, or advertisements or promotions relating to this Agreement or to the Products, services or equipment; or (iv) the relationships that result from this Agreement (collectively the “Claim”) will be determined by arbitration to the exclusion of the courts. Arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the jurisdiction indicated in Section III below that are in effect on the date of the notice.
18.3. Customer agrees to waive any right Customer may have to commence or participate in any class action or representative proceeding against KikBak related to any Claim and, where applicable, Customer also agrees to opt out of any class or representative proceedings against KikBak.
18.4. Notwithstanding the foregoing provisions, (i) each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (ii) KikBak reserves the right to collect any outstanding amounts that Customer owes to KikBak in a court of competent jurisdiction.

19. Export Compliance and Other Restrictions

Products which KikBak may provide or make available to Customer may be subject to U.S. export control and economic sanctions laws. Customer agrees to comply with all such laws and regulations as well as all laws and regulations applicable to the Customer’s jurisdiction of origin, as they relate to the access and use of Products. Customer agrees not to access the Product from any jurisdiction in which the provision of the Product is prohibited under U.S. or other applicable laws or regulations (a “Proscribed Country”) or provide access to the Product to any government, entity or individual located in any Proscribed Country. Customer represents, warrants, and covenants that (i) it is not a national of, or company registered in, any Proscribed Country; and (ii) it shall not permit third parties to access or use the Product in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions.

20. General

20.1. If one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of this Agreement shall be unaffected.
20.2. Customer may address all notices, statements and other communications to KikBak to the following address:
Aulabaugh Consulting Group, Inc
2987 Yarmouth Greenway Drive #100
Fitchburg, WI 53711
USA
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20.3. KikBak may provide any and all notices, statements and other communications to Customer through either email, posting on its website, an in-product message, or by mail or express delivery service.
20.4. During the term of this Agreement, Customer grants KikBak a free license to use, reference and display the Customer’s name and trademarks in any communications, including publications, press releases, stories, websites, social media posts, and public filings in connection with the promotion, marketing, distribution and public disclosure of the KikBak brand, activity and Products (collectively, the “Materials”). Following the termination of this Agreement, KikBak shall have sixty (60) days to remove all Customer’s name and trademarks from the Materials.
20.5. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than Customer’s payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party.
20.6. This Agreement, along with the applicable Order Form, the Acceptable Use Policy, the Infringement Policy, the Privacy Policy and the DPA, constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto.
20.7. In the event of any inconsistency or conflict between the terms of the Agreement and the terms of the Order Form, the terms of the Order Form shall govern.
20.8. KikBak reserves the right, at any time and upon thirty (30) days’ written notice, to amend this Agreement, including making changes to the Fees and scope of the Products.
20.9. Customer has reviewed, understood and accepted the terms and conditions set forth in this Agreement and has either consulted with legal counsel prior to executing this Agreement or has knowingly forgone its right to consult with legal counsel prior to such execution.
20.10. The parties acknowledge that they require that this Agreement be drawn up in the English language, that the English language version prevails and that any translation is for information purposes only.

II. Product-Specific Terms and Conditions

1. KikBak eCommerce

1.1. Customer will retain ownership of the URL and/or domain name applicable to any website utilized by Customer in connection with the KikBak products (“Customer’s Site”).
1.2. Customer represents and warrants that currently and throughout the Term, Customer and any Users are fully authorized to publish, and authorize KikBak to publish on behalf of Customer, without the necessity of obtaining any further permissions from or payments to any third party, all of the materials provided for publication on Customer’s Site, including without limitation, text, logos, photos and other graphics.
1.3. For Customers in certain countries, certain Product functionality, such as the online shoppingcart.

4. KikBak Payments

KikBak Payments is a separate payment processing service governed by a different set of agreements, including those of third-party payments processors. To the extent applicable, these agreements are referenced in the Order Form and the online merchant application. By submitting a merchant application, Customer has been presented with, and consented to, these separate terms and conditions.

5. API Access
To the extent Customer’s Order Form includes access to KikBak’s application programming interfaces (the “KikBak APIs”), Customer’s access to and use of the KikBak APIs is governed by the KikBak API License Agreement.