This KLC User Agreement (this "Agreement"), is a binding agreement between Kentucky League of Cities, Inc. ("KLC") and the person or entity using KLC QuickPay payment system (the "User").
KLC PROVIDES THE KLC QUICKPAY PAYMENT SYSTEM SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT USER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT" BUTTON YOU (A) AUTHORIZE KLC TO DEBIT THE BANK ACCOUNT OR CHARGE THE CREDIT CARD YOU’VE PROVIDED FOR PAYMENT AMOUNTS OWED AND ANY APPLICABLE FEES UNTIL YOUR AUTHORIZATION IS REVOKED, INCLUDING FOR ANY ONGOING PAYMENTS YOU APPROVE; (B) ACCEPT THIS AGREEMENT AND AGREE THAT USER IS LEGALLY BOUND BY ITS TERMS; AND (C) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF USER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF USER AND BIND USER TO ITS TERMS. IF USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, KLC WILL NOT AND DOES NOT PERMIT USE OF THE KLC QUICKPAY PAYMENT SYSTEM TO USER AND USER MUST NOT USE THE KLC QUICKPAY PAYMENT SYSTEM SOFTWARE.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Software" means the KLC QUICKPAY payment systems software.
2. License Grant and Scope. Subject to and conditioned upon User’s payment of any applicable fees and User's strict compliance with all terms and conditions set forth in this Agreement, KLC hereby grants to User a non-exclusive, non-transferable, non-sublicensable, limited license during the term of the Agreement, to access the Software to make payments, solely as set forth in this Agreement and subject to all conditions and limitations set forth in this Agreement. By using the Software and accepting the terms and conditions of this Agreement, you authorize KLC or its agents or subcontractors to debit the bank account or credit card account you specify for any amount owed for charges arising from your payment obligations. You may amend or cancel this authorization at any time by clicking the remove link in your dashboard.
3. Use Restrictions. User shall not, directly or indirectly:
(a) use (including make any copies of) the Software beyond the scope of the license granted under this Agreement;
(b) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of User, with access to or use of the Software;
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software, including any copy thereof;
(g) use the Software in violation of any law, regulation, or rule; or
(h) use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the User's commercial disadvantage.
4. Compliance Measures.
(a) The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under this Agreement. User shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
5. Collection and Use of Information.
(b) User acknowledges that KLC may, directly or indirectly through the services of third parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through security measures included in the Software.
(c) User agrees that KLC may use such information for any purpose related to any use of the Software by User or on User's equipment, including but not limited to:
(i) improving the performance of the Software or developing updates; and
(ii) verifying User's compliance with the terms of this Agreement and enforcing KLC's rights, including all Intellectual Property Rights in and to the Software.
6. Intellectual Property Rights. User acknowledges and agrees that the Software is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. KLC and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement.
7. Payment. Any fees required to use the Software are payable in advance and are non-refundable, except as may be expressly set forth herein.
(a) This Agreement and the license granted hereunder may be terminated or suspended at any time by KLC.
(b) Upon termination of this Agreement, the license granted hereunder shall also terminate, and User shall cease using the Software. No termination shall affect User's obligation to pay all fees that may have become due before such termination, or entitle User to any refund.
9. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer.
(a) THE SOFTWARE IS PROVIDED TO USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KLC, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, KLC PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET THE USER'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL KLC OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT KLC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL KLC'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO KLC BY USER, WITHIN THE PRECEDING TWELVE (12) MONTH PERIOD FROM WHEN THE FACTS GIVING RISE TO SUCH LIABILITY OCCURRED, PURSUANT TO THIS AGREEMENT FOR USE OF THE SOFTWARE.
11. Indemnification. User agrees to defend, indemnify, and hold harmless KLC, its affiliates, including any of its or their respective licensors and service providers from and against any and all loss, liability, costs, claims, damages, demands, judgments, and expenses (including reasonable attorney’s fees) arising from any third party claim, action, suit or proceeding brought against KLC arising out of or related to User’s negligence, willful misconduct, breach of this Agreement, or violation of any law or regulation.
12. Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
13. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
(a) All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Kentucky without giving effect to any choice or conflict of law provision or rule. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
(b) KLC will not be responsible or liable to User, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or User equipment, loss and destruction of property, or any other circumstances or causes beyond KLC's reasonable control.
(c) All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or email (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
(d) This Agreement constitutes the sole and entire agreement between User and KLC with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(e) User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without KLC's prior written consent, which consent KLC may give or withhold in its sole discretion.
(f) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(h) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(i) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.