TERMS AND CONDITIONS
Effective Date: Aug 11, 2017
Last Updated: Jun 24, 2018
These Terms and Conditions ("Terms") govern Your access to and use of Kerkton Security Technologies LLC's("Kerkton Security Technologies", "Kerkton", "We", or "Our") Services. These Terms apply to both the legal entity accepting this Agreement ("Customer") and persons authorized by the Customer to access and/or use the Service ("Users").
The Company Administrator, defined below, and all authorized signatories of the Customer that accept these Terms as part of the registration process are doing so both on behalf of the Customer and for themselves as Users. If You are a Company Administrator and/or authorized signatory of the Customer then You represent that You have full power, capacity, and authority to accept these Terms. You represent that You have full legal authority to bind the Customer to these Terms. If You don't have the legal authority to bind, please ensure that a person authorized on behalf of the Customer accepts these Terms and consents to You accepting them as well.
The Terms are binding to both the individual Users and to the Customer. The Customer agrees to be responsible for its Users' adherence to, and for consequences of violation to, these Terms as well as all applicable laws and regulation.
As part of the registration process to access Our Services You must agree to these Terms. If You do not agree to the entire agreement, do not complete the registration process. By registering, accessing or using the Service You agree to be bound by these Terms. This Agreement is effective between You and Kerkton Security Technologies as of the date You accept these Terms as part of Your registration.
1.1 "Website" or "Site" means the 'Kerkton.com' domain as well as all subdomains.
1.2 "Services"means all firmware, software, Services, and applications on Kerkton Security Technologies' Site. The primary Service of Kerkton Security Technologies is Orna, but also includes support and Services, such as training or consulting, related to Orna that are provided either for free or for a fee.
1.3 "Orna" is a software as a Service which is accessed at Orna.Kerkton.com, a sub-domain of the Site. Access to Orna is available through purchased subscriptions.
1.4 "Customer" means the legal entity on behalf of which the person accepting this Agreement is acting.
1.5 "Users" means employees or other persons whom are authorized by the Customer to access and use the Customer's Orna account. Users may be authorized by the Customer's Orna Administrators, defined below, or by Kerkton Security Technologies at a Customer's request.
1.6 "You" or "Your" means both the Customer and its Users.
1.7 "Company Administrator" means the person identified by the Customer as the primary point of contact regarding access and use of Our Services, such as Orna. Registration emails sent to the Company Administrator will remind the person that they are the Company Administrator. The Company Administrator may be changed in the 'Company Profile' page within Orna.
1.8 "Orna Administrator" means the Users who are granted administrative privileges within the Orna application. By default this is only the Company Administrator, but an unlimited number of Orna Administrators can be added in the 'Permissions' page within Orna.
1.9 "Third Party Services" means applications, services and software products that are provided by entities or individuals other than Kerkton Security Technologies and may be integrated or interoperate with our Services. To the extent reasonable, Third Party Services are identified as such.
1.10 "Any Data" means all text, information, audio, video, graphics, images, or other electronic data on the Site or Service, regardless of ownership.
1.11 "Your Data" means all text, information, audio, video, graphics, images, or other electronic data that You upload, submit, or otherwise transmit to or through our Services.
1.12 "Confidential Information" means any data, trade secrets, know-how, software (including design, documentation, instructions, functionality and updates), future product plans or any other operational, technical, financial, or business information related to technology and Services which is not-publicly available. Furthermore, any materials which are either marked as confidential or would be reasonably understood to be confidential.
1.13 "HIPAA" means Health Insurance Portability and Accountability Act of 1996 which is United States legislation that provides data privacy and security provisions for safeguarding medical information.
2.1 OWNERSHIP - The Customer retains full ownership of Your Data, but You agree to grant Kerkton Security Technologies a royalty-free non-exclusive perpetual license to use, modify, reproduce, distribute, transfer, or edit Your Data if for one of the following reasons (i) as part of Customer support for You; (ii) if required as part of maintenance or upgrades to the Services; (iii) in fulfilling any other actions permitted by these Terms; or (iv) as otherwise permitted by You.
2.2 MONITORING & RELATED ACTIONS - You agree that You will use commercially reasonable efforts to ensure Your Data submitted, uploaded, or otherwise transmitted to the Service by You complies with these Terms as well as all applicable laws and regulations. Kerkton Security Technologies does not monitor Any Data for accuracy or legality.
Kerkton Security Technologies reserves the right at all times, but are not obligated, to remove or refuse to distribute Any Data on the Service as well as the right to access, read, preserve, and disclose Any Data we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce the Terms, including investigation of potential violations; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to support requests; or (v) protect the rights, property, or safety of Kerkton Security Technologies, the Customer, the Users, and the public.
Should You have concerns that Any Data is inaccurate, illegal, or violates these Terms then You should promptly notify Kerkton Security Technologies by email at [email protected] For the avoidance of doubt, this includes Any Data that infringes copyright.
2.3 WARRANTIES, LIABILITIES, & RESPONSBILITIES - You represent and warrant that You have all the rights, power, and authority necessary to grant the rights granted herein to any of Your Data that You submit including all necessary rights to upload it for use in accordance with these Terms.
Kerkton Security Technologies does not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, legality or reliability of Any Data or communications posted via the Service or endorse any opinions expressed via the Service. If You use or rely on Any Data or materials posted via the Service or obtained by You through the Service, it is at Your own risk.
You agree that You are responsible for ensuring that You have the right to submit Your Data to the Service and that the Your Data, (i) is accurate; (ii) does not violate any applicable laws; (iii) may be transmitted and stored on the Service without violating any applicable laws. You agree that under no circumstances will Kerkton Security Technologies be responsible or liable for any consequences, including use, of Your Data.
3. USE OF THE SERVICE
3.1 COMPLIANCE - You agree to only use the Service in full compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations. Kerkton Security Technologies reserves the right to internally monitor Your usage of the Site and the Services and suspend of terminate Your access for prohibited use.
3.2 PROHIBITED USE - You must not, and must not attempt to, do the following things:
3.2.1 Use the Service for any unlawful purpose, including but not limited storage or transmission of infringing, libelous, or otherwise unlawful or tortious data, or storage or transmission of other people's private or personally identifiable information in violation of third party privacy rights;
3.2.2 Sell, resell, lease, rent, loan, time share, sublicense, transfer, gift, or otherwise make the Service available to anyone other than employees of the Customer. Under no circumstances, without express written consent from an authorized Kerkton Security Technologies representative, should any third party be permitted to view or access the Service;
3.2.3 User subscriptions cannot be shared or used by more than one User without express written consent from an authorized Kerkton Security Technologies representative.
3.2.4 Access to the Service cannot be used to build, improve, or benchmark a competitive product or Service whether owned by the You or a third party. This includes, but is not limited to, reverse-engineering, copying, modifying, disassembling, or compiling any design, features, functions, code, or otherwise that viewed or accessed as part of the Service. You may not discuss, share, communicate or otherwise share any non-public details of the Service with any third party who is a competitor of Kerkton Security Technologies, or intends to have a competitive product. Direct competitor of Kerkton Security Technologies may under no circumstances view or access Our Services.
3.2.5 Publish, store or link to malicious code or data intended to damage or disrupt the service, another User's browser/computer or to compromise a User's privacy;
3.2.6 Interfere with, disrupt, create undue burden on, abuse or otherwise fraudulently use the Services, including but not limited to attempts to gain unauthorized access, taper with, breach, probe, scan, or circumvent any security or authentication measure, non-public areas of the Service or its related systems or networks.
3.2.7 Publish, store, or transmit data which requires HIPAA compliance. The system is not HIPAA compliant. If You are covered by HIPAA, You must not enter any medical information or HIPAA covered data into the system. You are responsible to identify whether you are covered by HIPAA and are responsible and liable for any resulting fine or penalty from misuse. Kerkton Security Technologies does not track or monitor who is covered by HIPAA or their use of our Services.
4.1 MUTUAL EXCHANGE AND DISCLOSURE - Each party agree to share Confidential Information for the sole purposes of providing or improving upon the products or Services covered by these Terms. A party may without permission disclose Confidential Information to internal employees or contractors strictly on a need to know basis. Any employee or contractor must be legally obligated to protect the received Confidential Information from unauthorized use and disclosure. Both parties must protect received Confidential Information of the other in parity with their own information of like importance as well as ensure a reasonable level of protection for all Confidential Information. Additionally, a party may disclose Confidential Information if permitted elsewhere in this agreement or as required by a judicial or legislative order or proceeding.
4.2 ONGOING RESPONSIBILITIES - All obligations relating to Confidentiality survive and remain in full force in perpetuity regardless of the situation, including in the event of termination, cancellation, and/or suspension.
4.3 EXCLUSIONS - The confidentiality restrictions do not apply when (i) there is written permission provided by the information owner to remove any restrictions; (ii) the information is publicly known through no wrongful act of Recipient; (iii) any other part of this agreement permits the action; (iv) it is required by a governmental agency or by law.
5. SERVICE SUBSCRIPTION, FEES AND PAYMENT
5.1 SUBSCRIPTION - Services which provide access and use of a software application are billed as a per User subscription. Use of a User subscription is determined by whether a User is enabled within the software application, which the Customer and Orna Administrators control. If a User is enabled within the system then they are considered to be using the subscription, regardless of whether the User even logged into the system. To discontinue a User's subscription, an Orna Administrator should disable the relevant Users within the 'admin' module of the system. To terminate the Customer's collective subscriptions, see the cancellation, suspension, and termination section of these Terms.
5.2 PRICE - Unless otherwise agreed by an authorized employee of Kerkton Security Technologies, prices are in US Dollars and subscriptions to Orna costs $40 per month for every User with an enabled subscription excluding taxes, fees, and discounts. Kerkton Security Technologies reserves the right to increase the price of our software applications at any time. The price for all other Services, such as training seminars, vary according to requirements and are therefore to be agreed between Kerkton Security Technologies and You.
5.3 BILLING & PAYMENT TERMS - The billing cycle for subscriptions are every calendar month and the Customer will be billed at the end of every billing cycle. Services which are not subscriptions will be billed prior to the delivery of any Services. Should You add or remove subscriptions, including terminating all subscriptions, mid-month then Your bill for said subscriptions will be billed pro-rata. So, for example, if the month has 30 days and the User was active for 15 days, then that User will be charged for 50% (15 days / 30 days) of the full subscription price. Bills will not pro-rata for hours, so any subscription added or removed will be charged for that entire day. Payment Terms are net thirty (30) days. Interest at the rate of 2% per month will be charged on past due accounts (26.8% per annum). Invoices paid by credit card will incur an additional 3.5% fee, all other payment options will not have an additional fee.
5.4 TAXES - Any and all taxes which Kerkton Security Technologies is required to pay, to collect, or to reimburse to others resulting from this agreement including the use or sale of our subscriptions or Services to You shall be the Customer's responsibility to pay. Kerkton Security Technologies will attempt to include all taxes in invoices; however, if a tax is found to be missing from the invoice the Customer agrees to retroactively reimburse Kerkton Security Technologies for any missing taxes on previous invoices.
5.5 BETA PERIOD - Any subscriptions during the beta period, ending 31 August 2017, is free of charge, but subject to these Terms. By continuing to use the Service after the trial period, You agree to pay Kerkton Security Technologies any fees for subscriptions used in accordance with the pricing and payment Terms of this agreement. Fees paid are non-refundable, except as provided in these Terms or when required by law.
5.6 MONEY BACK GARUNTEE - In the first thirty days, starting when the Customer was sent its first registration email, Kerkton Security Technologies offers a money back guarantee. In order to receive any money back the Customer must cancel the account, as per the following cancellation, suspension, and termination section of these Terms, as well as send an email to [email protected] requesting money back. As billing for subscriptions is done in arrears at the end of every month You may or may not have paid an invoice, depending on the start date. The money back only covers the amount You paid to Kerkton Security Technologies during the money back guarantee period and any unbilled subscription usage during the money back period will not be billed should the Customer cancel and email [email protected]
5.7 ALTERNATIVE BILLING AND PAYMENT - Should the Customer agree with Kerkton Security Technologies to a yearly payment option, to have a fixed-price subscription not based on users, or any other alternative billing and/or payment method then there will be a separate signed agreement to that effect which will supersede conflicting clauses in this section.
6. CANCELLATION, SUSPENSION, AND TERMINATION - The Customer may cancel at any time by discontinuing use of our Services. Use of the Service is determined by whether a User is enabled within the system. To discontinue use of the Service, an Orna Administrator should disable all Users within the 'admin' module of the system. Kerkton Security Technologies may suspend and/or terminate Your account without notice should You violate these Terms or for any other reason deemed appropriate by Kerkton Security Technologies at our sole discretion. In the event of cancellation, suspension, and/or termination, the Customer is still liable to pay the bill for that cycle. As explained in the fees section, the bill will be pro-rata so the Customer will only pay for the part of the billing cycle prior to cancellation, suspension, and/or termination.
7. SERVICE UPDATES - The Service may change from time to time as we evolve, refine, or add more features to the Service. Most updates should cause no downtime for the Service and we aim to provide notice of any planned downtime. However, Kerkton Security Technologies may temporarily or permanently stop providing the Service, or any features within the Service, to You at our sole discretion and may not be able to provide You with prior notice.
8. LIMITATION OF LIABILITY - IN NO EVENT, REGARDLESS OF CAUSE, SHALL KERKTON SECURITY TECHNOLOGIES ASSUME RESPONSIBILITY OR LIABILITY FOR (i) THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY; OR (ii) ANY PENALTIES OR PENALTY CLAUSES; OR (iii) INDEMNIFICATION OF CUSTOMER OR AFFIALIATES, UNLESS SPECIFIED IN THIS AGREEMENT, REGARDLESS OF WHETHER THEY AROSE IN RELATION TO THE SERVICES OF THIS AGREEMENT OR NOT; OR (iv) INDIRECT OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCE, INCLUDING BUT NOT LIMITED TO LOSS OR INJURY. LIABILITY MAY NOT UNDER ANY CIRCUMSTANCES EXCEED THE AMOUNT PAID FOR SERVICES IN THE THREE MONTHS PRIOR TO COMMENCING LEGAL ACTION. LEGAL ACTION MAY ONLY BE BROUGHT WITHIN THREE MONTHS AFTER THE PRIMARY CAUSE OF ACTION OCCURS. LIMITATION OF LIABILITY APPLIES REGARDLESS OF THE FORM OF LEGAL ACTION.
9.1 BY KERKTON SECURITY TECHNOLOGIES - Kerkton Security Technologies agrees to indemnify and defend the Customer and its Affiliates from any lawsuit, claim, or legal action arising from actual or alleged infringement of intellectual property of a third party. However, the indemnity and defense is conditional on the following (i) prompt written notification (within 30 days) of any lawsuit claim or legal action; (ii) Your continued assistance of any reasonable requests related to the matter; (iii) You agree to give Kerkton Security Technologies authority to represent such party in defending the Claim, sole control of the defense and settlement negotiations/agreements. Kerkton Security Technologies will have no liability for infringement if the claim involved, whether fully or in-part, (i) modification to our Services by anyone but Kerkton Security Technologies; (ii) any infringement based on Third Party Services; (iii) any action or inaction not permitted by these Terms; (iv) any action or inaction outside the scope of these Terms.
9.2 BY YOU - You agree to indemnify and defend Kerkton Security Technologies and its Affiliates from any lawsuit, liability, loss, cost, or expense arising out of any violation of these Terms or Your Data, including but not limited to (i) inappropriate data; (ii) inappropriate use; (iii) sharing of Your Data with third parties.
10. WARRANTIES - THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDEDWITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, KERKTON SECURITY TECHNOLOGIES AND ITS LICENSORS DO NOT WARRANT THAT THE DATA IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES.
11. PROPRIETARY RIGHTS - All proprietary rights embodied in Kerkton Security Technologies' Websites, Services, and technology, including all future updates, belong to and will remain exclusive property of Kerkton Security Technologies and are protective by all applicable laws, including copyright and trademark of both the United States and foreign countries. You have no right to use the Kerkton Security Technologies' name, trademarks, logos, domain names, or other distinctive brand features without prior written consent. Kerkton Security Technologies shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate any feedback, comments, suggestions, or intellectual property You provide to Kerkton Security Technologies to improve our Services.
12. THIRD PARTIES - INTEGRATIONS & DATA SHARING
12.1 INTEGRATIONS - Kerkton Security Technologies' may integrate with Third Party Services. Third Party Services, such as Google Maps, which are deemed core to our Services are included in Your fees for our Services and no additional purchase is necessary. Other optional integrations of Third Party Services to our Services may require You to acquire a license, whether free of for a fee, to access the Third Party Services. Any acquisition by You of Third Party Services, and any related exchange of data, is solely between You and that third party provider. Kerkton Security Technologies may help interoperability with Third Party Services, but does not warrant of support the Third Party Services. Moreover, Kerkton Security Technologies may stop providing any integration or interoperability of a Third Party's at any time without entitling You to any refund, credit, or other compensation.
12.2 DATA SHARING WITH THIRD PARTIES - You acknowledge that Kerkton Security Technologies may provide access to Your Data to any Third Party Services integrated or interoperating with Our Services, as required the integration or interoperation. Should any of Your Data be disclosed, modified or deleted because of any integration or interoperation, Kerkton Security Technologies is not responsible or liable.
12.3 GOOGLE MAPS API - As part of these Terms You are also agreeing to be bound by Google's Terms of Service which is essential to the map feature in our Service. A link to the latest Terms of Service is available on the Google map in our Services. As of the effective date of these Terms, the current Google maps Terms of Service can be found at https://www.google.com/intl/en-US_US/help/terms_maps.html .
13. SECURITY - You are responsible for safeguarding the password that You use to access the Service as well as acquiring and maintaining technology and procedures to securely access the Internet. Kerkton Security Technologies will maintain commercially reasonable security controls to protect You from unauthorized access. In the rare event unauthorized access occurs and notifications to persons included in Your Data is required, You shall be solely responsible for any and all such notifications and related expense. You must notify Kerkton Security Technologies immediately upon becoming aware of any breach of security or unauthorized use of Your account, whether known or reasonably suspected.
14. MODIFICATION, ASSIGNMENT, OR TRANSFERENCE - This Agreement constitutes the complete agreement between the parties with respect to the Services and other subject matter hereof. No modification, assignment, or transfer of this agreement, including any rights, obligations, or duties is permitted, including to any third party, unless permitted by the agreement or is in writing and is signed by an authorized representative of each party. An exception to this is business transactions where Kerkton Security Technologies may assign or transfer these Terms to any person or entity that acquires or is merged with Kerkton Security Technologies. In the event of a business transaction You will be notified via email and/or prominent notice will be placed Our site of any change in ownership.
16. FORCE MAJEURE - Kerkton Security Technologies shall not be liable for any loss, damage or delay in delivery due to force majeure. Force majeure includes any act of God, governmental, nature, fire, epidemics, floods, riots, strike, lockout, or any other contingences or other reasonable causes which are beyond reasonable control of Kerkton Security Technologies which might prevent the development, manufacture, shipment or delivery of Services.
17. GOVERNING LAW AND INVALIDITY - This Agreement shall be governed by and interpreted in accordance with the laws of the State of Arizona, excluding any conflict of laws which would lead to the application of any other laws. The parties hereby agree to the exclusive jurisdiction and venue of Arizona state and federal courts with respect to any action between the parties relating to this Agreement. Any provision hereof which is contrary to law it shall be modified to the minimum extent necessary to make it valid and enforceable. Should a provision not be modifiable, it shall be severed from the agreement with the full remainder of Terms fully in force and effect.
18. CHANGES TO TERMS - Kerkton Security Technologies reserves the right to make changes to this policy at any time. If we make any material changes and You are a registered User of our Services we will notify You either by email at the e-mail address on Your account or by means of a notice on the Site prior to the change becoming effective. If You are not a registered User of our Service, notice is given on www.kerkton.com/Terms-Conditions/ and You are strongly recommended to check this page often, referring to the effective date, which represents the date of the last modification, listed at the top.
19. CONTACT DETAILS - If You have any questions or comments about this Policy, please contact us by emailing us at [email protected] or by writing to us at:
Kerkton Security Technologies, LLC
610 E Bell Rd., Suite 2-122
Phoenix, AZ 85022