User Terms and Conditions
Effective Date: February 19, 2024
If you are a Customer, and do not otherwise have a Contractors Business Platform-as-a-Service Agreement (the “MSA”) with Knowledge Transfer LLC, these Customer Terms and Conditions (the “Customer Terms”) govern your access and use of the Services (hereinafter “RadiansERP”). Please read them carefully as these Customer Terms are a legally binding contract between you and Knowledge Transfer LLC. As part of these Customer Terms, you agree to comply with the most recent version of our Acceptance Use Policy, Data Processing Addendum and any applicable Order Form which are incorporated by reference into these Customer Terms. Capitalized terms used below but not defined in these Customer Terms have the meaning set forth in the Definitions.
READ THESE CUSTOMER TERMS CAREFULLY BEFORE USING RADIANSERP AS USE OF RADIANSERP INDICATES THAT YOU HAVE BOTH READ AND ACCEPTED THESE CUSTOMER TERMS. THESE CUSTOMER TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE CUSTOMER TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH KNOWLEDGE TRANSFER LLC. YOU ACKNOWLEDGE THAT YOU ARE ENTERING INTO THESE CUSTOMER TERMS VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS WHATSOEVER EXCEPT THOSE CONTAINED IN THE CUSTOMER TERMS THEMSELVES.
1. SCOPE
a. If you are an individual Customer and registered for an Account (“Free Account” or “Paid Account” or “Account”) using your personal email, you and you alone are entitled to the rights and responsible for the obligations under these Customer Terms.
b. If you are an individual Customer and acting on behalf of a business entity (such as your employer, for example using your employer’s email domain), you hereby represent and warrant that you have obtained any necessary permissions from such entity to access the Account and that you have the authority to bind such entity to these Customer Terms, and that your access to and use of RadiansERP will not violate any internal policies of such entity. In such case, “you,” and “your” will refer to that business entity for purposes of these Customer Terms.
c. If you are an Entity purchasing a subscription and therein registered an Account for your Authorized Users, you may provision or deprovision access to RadiansERP, manage permissions, retention and export settings and transfer/assign accounts as described in the documentation. As such, you will (a) inform Authorized Users of all Entity policies and practices relevant to their use of RadiansERP and of any settings that may impact the processing of Customer Data; and (b) ensure the collection, transfer, and processing of Customer Data under the Customer Terms is lawful. If any terms in an Industry-Specific Supplement (“Industry-Specific Terms”), apply to you, (e.g. Customer is a non-Contractor entity), those terms are also incorporated by reference herein and you agree to fully comply with the applicable Industry-Specific Terms. To the extent any such Industry-Specific Terms conflict with the terms below, the Industry-Specific Terms shall take precedence.
d. If you are an Authorized User registered using your Entity email domain and whose subscription was purchased and controlled by your Entity, you acknowledge that your use of RadiansERP is controlled by your Entity, the Entity is the Customer and therefore entitled to all rights and responsible for all obligations under the MSA, and your Entity may change or remove your access to and use of RadiansERP, or the Customer Data you have submitted to RadiansERP, at any time in the Entity’s discretion.
2. RESPONSIBILITIES
a. Knowledge Transfer LLC.
i. Provision. Knowledge Transfer LLC shall provide you with the necessary credentials and network links or connections to allow you to access RadiansERP. You agree that the total number of Authorized Users will be reasonable and not exceed a reasonable number as set forth in an applicable Order Form, or as duly purchased under the Subscription Term section of the MSA by an Entity.
ii. Support. Knowledge Transfer LLC shall provide support for RadiansERP as may be described on Knowledge Transfer LLC’s website.
iii. Security. Knowledge Transfer LLC will use commercially reasonable efforts to implement and maintain technical and organizational controls in accordance with applicable industry standards, designed to prevent unauthorized access, use, alteration, or disclosure of Customer Data.
iv. Investigation. Knowledge Transfer LLC reserves the right (but does not have the obligation) to investigate complaints or reported violations of these Customer Terms and to take any action Knowledge Transfer LLC deems appropriate, including but not limited to suspending access to RadiansERP, terminating your Account, or permanently revoking your access to RadiansERP, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your Account, Customer Data, e-mail addresses, usage history, posted materials, IP addresses, and traffic information, as allowed under our Privacy Notice. You agree to promptly notify Knowledge Transfer LLC in the event that you are made aware of any unauthorized or illegal use of RadiansERP, by emailing us at [email protected].
v. Data Protection. The terms of the Data Processing Addendum (“DPA”) are available and posted as of the Effective Date are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA.
b. Customer.
i. Cooperation. Where cooperation with Knowledge Transfer LLC is required or reasonably requested in connection with Knowledge Transfer LLC’s obligations under these Customer Terms, you will cooperate with Knowledge Transfer LLC, and Knowledge Transfer LLC will not be liable for delay or failure to provide RadiansERP to the extent caused by your failure or delay to cooperate or make relevant personnel or data available.
ii. Compliance. You and your access and use of RadiansERP (including by Authorized Users and Invitees) must comply at all times with these Customer Terms, the Acceptable Use Policy and all Applicable Laws. Knowledge Transfer LLC controls and operates RadiansERP from our headquarters in the United States of America and the entirety of RadiansERP may not be appropriate or available for use in other locations. If you use RadiansERP outside the United States of America, you are solely responsible for following all Applicable Laws in the jurisdiction which you access RadiansERP. Use of RadiansERP shall be limited to your internal business and not for resale or transfer. If Customer is an Entity, Customer shall make all Authorized Users aware of these Customer Terms and cause Authorized Users to comply with these Customer Terms. You acknowledge that you remain liable for the acts and omissions of any third party (including Invitees) that you allow, enable, or otherwise provide access to RadiansERP, including their compliance with these Customer Terms.
iii. Restrictions. RadiansERP is not intended for and may not be used by individuals under 18 years of age, who are incapable of forming a binding contract with Knowledge Transfer LLC, or who are otherwise barred from using RadiansERP under Applicable Laws. By registering for a Knowledge Transfer LLC Account for RadiansERP, you state that you are at least 18 years of age, and you are responsible for ensuring that all Invitees are at least 18 years old, unless otherwise permitted by the applicable Industry-Specific Terms. Creating an Account with false information is a violation of our Customer Terms, including creating an Account on behalf of others or persons under the age of 18.
iv. Security. You shall maintain the security of your networks, establish reasonable technical and organizational controls and, where Customer is an Entity, maintain the security of its Authorized Users’ credentials (user credentials may not be shared or used by more than one Authorized User). You shall make commercially reasonable efforts to prevent unauthorized access to, or use of Customer’s or its Authorized Users’ Accounts and shall immediately notify Knowledge Transfer LLC at [email protected] of any known unauthorized use.
v.Privacy. You acknowledge that your (and any Authorized Users’) registration of a Knowledge Transfer LLC Account and use of RadiansERP serves as your consent to Knowledge Transfer LLC’s processing of Personal Data as set forth in our Privacy Notice.
vi.Customer Data. You are responsible for the accuracy, quality, and legality of Customer Data and the manner in which it is acquired. If Customer is an Entity, Customer will ensure that (a) all Authorized Users given access to RadiansERP have the right to access the information and Customer Data made accessible to them by Customer through RadiansERP; and (b) any Authorized User granting Knowledge Transfer LLC access to any Customer Data has the right and authority to grant such access.
vii. Invitees. RadiansERP allows you to connect with Invitees and Invitees are subject to the Invitee Terms. You are responsible for how you share and publicize RadiansERP. As such, you are responsible for the activities of your Invitees, even if such Invitee is not from your organization or domain.
3. ACCOUNT SET-UP
a. General. To use RadiansERP as a Customer, you need to set up an Account. You are authorized by Knowledge Transfer LLC to set up one Account only (unless otherwise approved in writing by Knowledge Transfer LLC). Knowledge Transfer LLC reserves the right to terminate any additional Accounts set up by you and any Accounts that have been inactive for over six (6) months.
b.Credentials. In order to create an Account, you must first submit applicable registration-related information as requested via RadiansERP or by Knowledge Transfer LLC, which include your email address and your name, and which Knowledge Transfer LLC may retain. Once you submit the required registration information, we will determine whether to approve your proposed Account, in our sole discretion. If approved, you will be sent an email detailing how to complete your registration and open the Account. For so long as you use the Account, you agree to provide, update, and maintain only true, accurate, current, and complete information by logging into your Account and making relevant changes directly. Because it is your Account, it is your responsibility to obtain and maintain all equipment and services needed for access to and use of RadiansERP as well as paying related Fees and charges. You agree to choose a strong and secure password(s) and maintain the confidentiality of your password(s), including any password of a third-party site that we may allow you to use to access RadiansERP. Should you believe your method and or the credentials to access RadiansERP have been compromised in any way, you must immediately notify us at [email protected].
c.Billing. Knowledge Transfer LLC or our third-party payment processors may collect your billing information when you setup an Account, and by providing such billing information, you hereby authorize Knowledge Transfer LLC (and its third-party payment processors) to use such information for billing purposes and otherwise in accordance with our Privacy Notice. Knowledge Transfer LLC will bill the Fees in advance or as further described in the Subscription Term section of the MSA as and where applicable. Customers who qualify for invoice-billing are billed immediately at the start of the Initial Subscription Term and in advance of any Renewal Subscription Terms; payment of which is due seven (7) days from the first day of the then-current Subscription Term.
d. Account Ownership/Management
i. Knowledge Transfer LLC may control some of the URL(s) assigned to your Account and may change or deactivate said URL(s) with or without prior notice.
ii. If you are an Authorized User of a Customer that is an Entity, the Customer has the right to control, manage, monitor, and obtain reports on your use of RadiansERP via their Account.
iii. If you are an individual Customer registered using an email domain of an Entity you are acting on behalf of; such Entity has the right to control, manage, monitor, and obtain reports on your use of RadiansERP via their paid and active Account.
iv. If you are an individual Customer registered using your personal email address, you (and not an Entity) are responsible for managing your RadiansERP Account.
v. Both the “Owner” and “Admin” (as defined within the applicable Documentation) of an Account, as applicable, are each severally and jointly, deemed as the authorized representatives of you as a Customer, and any decision or action made by an Owner or Admin as applicable, is deemed as a decision or action of Customer.
vi. If you are an Authorized User, the Entity which authorized you to access RadiansERP may manage and control your Account with Knowledge Transfer LLC. Please visit User Roles and Permissions for more information on how such Entity may manage and control your Account, and the Customer Data which you transmit to the Account.
4. FEES AND PAYMENT
a. General. If you register for an Account, you agree to pay all applicable Fees related to your use and access of RadiansERP based on the Subscription rate, as described fully on our MSA. Notwithstanding anything to the contrary in the MSA, you understand that all Fees are non-cancellable and non-refundable and must be paid without offset or deduction of any kind.
b. Fees. By providing a payment method and/or related information (“Payment Method”), you expressly authorize us to charge the applicable Fees using such Payment Method incurred during the Subscription Term. To the extent that payment details and/or mechanisms are provided through third parties (such as our third-party payment processor or third-party procure to pay solutions), you agree that Knowledge Transfer LLC will have no liability to you arising out of the acts or omissions of such third parties.
c. Taxes. All Fees are exclusive of applicable sales, use, excise and other similar taxes, duties, and charges imposed by federal, state, local governmental, or regulatory authorities (“Taxes”). You expressly authorize Knowledge Transfer LLC to charge such Taxes on the Payment Method, if applicable.
5. TERMS & RENEWALS
a. Term. The length of the Initial Subscription Term and Renewal Subscription Terms are identified in your Order Form, invoice, or the Subscription Term section of the MSA.
b. Renewals. Notwithstanding anything to the contrary in the MSA, RadiansERP shall automatically renew for successive Renewal Subscription Terms for a term length equal to the previous subscription period. Knowledge Transfer LLC will automatically charge your existing Payment Method in the amount of the then-applicable Fees plus Taxes. Each Renewal Subscription Term may include a price increase of the Consumer Price Index (“CPI”) + 3% unless we notify you of a different rate before each Renewal Subscription Term starts. If applicable, you agree to maintain current billing information. If you are billed via invoice, you must provide Knowledge Transfer LLC with forty-five (45) days' written notice prior to the end of the then-current term of any requests for changes to (i) your Plan, (ii) the number of users in your Account, (ii) terms of an applicable Order Form, (iii) or any other similar modifications to your Account, including requests to terminate RadiansERP at the end of the then-current Initial or Renewal Subscription Term. You may be subject to a price increase for a Renewal Subscription Term for modifications described in this Section 5(b).
6. SUSPENSION & TERMINATION; CANCELLATION
a. Suspension; Termination. Knowledge Transfer LLC may suspend or terminate your access to and use of RadiansERP, including suspending access to or terminating your Account, or permanently revoke your access to RadiansERP, at our sole discretion, at any time with notice to you, including without limitation if Knowledge Transfer LLC reasonably determines that:
i. Your use of the Knowledge Transfer LLC IP disrupts or poses a security risk to the Knowledge Transfer LLC IP or to any other customer;
ii. You are using the Knowledge Transfer LLC IP in violation of these Customer Terms including the DPA, AUP, and Industry-Specific Terms for fraudulent activities;
iii. You have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
iv. Our provision of RadiansERP to you is prohibited by Applicable Law.
b. You agree that Knowledge Transfer LLC will have no liability for any consequences that you may incur as a result of suspending, terminating, or revoking your Account and/or access to RadiansERP.
c. Cancellation & Termination. Notwithstanding anything contrary in the MSA, you may change to a different Account or terminate your Knowledge Transfer LLC Account completely as per the Termination section of the MSA, and by contacting Knowledge Transfer LLC in writing and sending said document to [email protected], whereby such request will be reviewed as per the Account type and MSA, unless otherwise determined by Knowledge Transfer LLC.
d. Effect & Survival. Notwithstanding anything contrary in the MSA, upon any cancellation, termination or expiration of these Customer Terms, RadiansERP, or your Knowledge Transfer LLC Account: (i) Knowledge Transfer LLC may cease providing you, and you may no longer be able to access, RadiansERP, (ii) you will not be entitled to any refunds or credits and all outstanding payment obligations under these Customer Terms will become due immediately, and (iii) the following Sections will survive: 4, 6(c), 11, 12, 13(d), 14, 15, 16, and 17.
7. THIRD PARTY APPLICATIONS
a. Integrations. RadiansERP may contain features designed to link to, transfer Customer Data to, or otherwise access, Third Party Applications (“TPA”s). Knowledge Transfer LLC cannot guarantee the continued availability of such features and may cease providing them without entitling you to any refund, credit or other compensation, if for example and without limitation, the TPA provider ceases to make the TPA available for interoperation with RadiansERP features in a manner acceptable to Knowledge Transfer LLC in its sole discretion. Any changes to TPAs, including their unavailability, during the Subscription Term shall not affect your obligations under these Customer Terms or the applicable Order Form. Knowledge Transfer LLC will not be responsible for, and hereby disclaims all liability in connection with, any and all TPAs accessible via RadiansERP.
b. Third Party Applications. You may choose to enable integrations or exchange Customer Data with TPAs. Your use of a TPA is governed by your agreement with the relevant third-party provider, not these Customer Terms. You are responsible for selecting any such TPAs and for choosing the Customer Data to transfer to or from them. Knowledge Transfer LLC does not warrant or support TPAs, nor is Knowledge Transfer LLC responsible or liable for the security of Customer Data shared with or from such TPA, or any disclosure, modification, deletion or other processing of Customer Data resulting from access by such TPA or its provider. By using TPAs, you instruct and consent to Knowledge Transfer LLC disclosing or sharing Customer Data to the TPA as necessary to facilitate the integration with the TPA. You acknowledge and agree that, with respect to any Personal Data shared with a TPA, Knowledge Transfer LLC is not a sub-processor of that TPA, nor is that TPA a sub-processor of Knowledge Transfer LLC. If you are an Authorized User, you hereby represent and warrant that you have obtained any necessary permissions from your employer and your access and use of any TPAs will not violate any internal policies of your employer or applicable Entity.
8. FAIR USE; SMS
a. Fair Use. Certain RadiansERP features, like notifications, may be aggregated and collectively sent from fewer email addresses or phone numbers. This means those features are used concurrently by a number of customers. If a single customer places disproportionately high demands on RadiansERP, it may adversely affect the RadiansERP experience for other users, and Knowledge Transfer LLC will have the right to immediately suspend access to RadiansERP upon its reasonable belief that use of RadiansERP may or will adversely affect the use or experience of other users (“Fair Use”). The vast majority of our customers use RadiansERP considerately and their usage levels don't adversely impact service capacity. However, even the activity of a small number of customers who use RadiansERP inappropriately may significantly impact the service for other customers and therefore Knowledge Transfer LLC may suggest or recommend a custom Plan to Customer.
b. SMS (Text Messaging). If you (or any of your Authorized Users) consent to the use of the RadiansERP SMS notifications features, you agree to comply with the terms and conditions of the Twilio Acceptable Use Policy, as applicable, when sending and/or receiving such SMS notifications and acknowledge that your (and any of your Authorized Users’) utilization of SMS notifications are continuously monitored. In the spirit of the Fair Use described above, and depending on your Account type, you also acknowledge that you may be limited per user per month. Knowledge Transfer LLC reserves the right to determine such limitations, restrict such SMS usage or suspend access for excess usage in order to protect Knowledge Transfer LLC and other customers’ usage. RadiansERP users indemnify Knowledge Transfer LLC and are solely responsible for ensuring that the content of such text and/or SMS messages do not violate any laws.
9. EMBEDDING
RadiansERP includes the ability for Customers to recreate their website in RadiansERP (the “Embedded Website”). When doing so, the follow terms apply:
a. Knowledge Transfer LLC grants Customer a limited, revocable, non-exclusive, non-transferable (except in compliance with the Assignment Section 17(c)), non-sublicensable right to access and use the Embedded Website. The usage restrictions in these Customer Terms, including those in the Acceptable Use Policy, apply to Customer’s use of the Embedded Website.
b. Customer acknowledges and agrees that Knowledge Transfer LLC collects certain information about Customer’s website visitors when they interact with the Embedded Website as set out in our Privacy Notice. If Customer uses the Embedded Website, Customer must notify its website visitors in Customer’s privacy policy that it uses Knowledge Transfer LLC’s RadiansERP in its website and that Knowledge Transfer LLC collects certain information as set out in our Privacy Notice.
c. Customer’s use of the Embedded Website shall comply with applicable data protection and privacy laws, including any legal requirements to provide notice and obtain, and maintain records, of consent from website visitors.
d. When you use the Embedded Website, RadiansERP collects certain information from your website visitors by use of cookies and similar technologies as described in Knowledge Transfer LLC’s Privacy Notice. Your website visitors may have certain legal rights with respect to Knowledge Transfer LLC’s cookies when you use the Embedded Website. When you use the Embedded Website, you shall comply with one of the following:
i. You shall display our cookie banner when using the Embedded Website to allow website visitors to exercise their legal rights with respect to Knowledge Transfer LLC cookies, or
ii. If you choose to hide Knowledge Transfer LLC’s cookie banner, you acknowledge and agree that (a) RadiansERP still uses cookies when the Knowledge Transfer LLC cookie banner is hidden, and (b) you are solely responsible for providing a mechanism to your website visitors that allows them to exercise any legal rights they may have with respect to Knowledge Transfer LLC’s cookies.
10. AI/MACHINE LEARNING
a. AI Features. Knowledge Transfer LLC may make available certain features that include artificial intelligence, machine learning, or similar functionality (“AI Features”). These features may include technology developed by Knowledge Transfer LLC or a third-party provider.
b. Customer Responsibilities. Certain AI Features may provide output based on content you have input into them. You acknowledge and agree that such AI Features may provide output that is inaccurate or false. You are responsible for your use of such output and for ensuring your use complies with any applicable law. You agree to review all output prior to using it.
c. License. You consent to Knowledge Transfer LLC using your Customer Data to provide you with the Al Features. To the extent your Customer Data contains Personal Information, you instruct Knowledge Transfer LLC and its third-party providers to process such Personal Information for the purpose of providing the Al Features.
11. CONFIDENTIAL INFORMATION
a. Use and Protection. Recipient will (i) use Confidential Information only to fulfill its obligations and exercise its rights under these Customer Terms; (ii) not disclose Confidential Information to third parties without Discloser’s prior approval, except as permitted in these Customer Terms; and (iii) protect Confidential Information using at least the same precautions Recipient uses for its own similar information and no less than a reasonable standard of care.
b. Permitted Disclosures. Recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 11, and they are bound to confidentiality obligations no less protective than this Section 11.
c. Exclusions. These confidentiality obligations do not apply to information that Recipient can document (i) is or becomes public knowledge through no fault of Recipient, (ii) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from Discloser, (iii) it rightfully received from a third party without confidentiality restrictions or (iv) it independently developed without using or referencing Confidential Information.
d. Required Disclosures. Recipient may disclose Confidential Information of the Discloser to the extent required by Applicable Law, provided that Recipient shall make reasonable efforts to provide Discloser with prior written notice of such compelled disclosure and reasonable assistance (at Discloser’s cost) if the Discloser wishes to obtain protective treatment of the Confidential Information.
12. INTELLECTUAL PROPERTY
a. Knowledge Transfer LLC.
i. License. Notwithstanding anything to the contrary in the MSA and subject to your compliance with these Customer Terms and your applicable Order Form, Knowledge Transfer LLC grants to you a limited, revocable, non-exclusive, non-transferable (except in compliance with Assignment Section 17(c)), non-sublicensable right to access and use RadiansERP and applicable Documentation following the set-up of an Account. You have no other rights in RadiansERP and shall not use RadiansERP beyond the scope of the access granted under these Customer Terms.
ii. Feedback. You understand that Knowledge Transfer LLC may, in connection with RadiansERP, freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise. Nothing in our MSA or Customer Terms limit our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise. You are not required to submit Feedback and Knowledge Transfer LLC understands that any Feedback you provide is provided “as-is;” and Knowledge Transfer LLC will not publicly identify you as the source of Feedback without your reasonable prior written permission.
iii. Usage Information. Knowledge Transfer LLC may generate Usage Information based on Customer Data and your use of RadiansERP, including without limitation through our use of monitoring, session replay, and recording tools. As between you and Knowledge Transfer LLC, all right, title, and interest in Usage Information, and all Intellectual Property Rights therein, belong to and are retained solely by Knowledge Transfer LLC. For Clarity, Usage Information is at all times in aggregated and de-identified form.
iv.Knowledge Transfer LLC IP. Your use of RadiansERP does not constitute any right or license for you to use the Knowledge Transfer LLC patents, service marks or trademarks. The Websites KnowledgeTransferLLC.com and RadiansERP.com are also protected under international copyright laws. The copying, redistribution, use, or publication by you of any portion of the Websites is strictly prohibited. Your use of RadiansERP does not grant you ownership rights of any kind in the Knowledge Transfer LLC Intellectual Property (“IP”). Knowledge Transfer LLC and its licensors reserve and shall own all rights, titles, and interests in and to all Knowledge Transfer LLC IP, and RadiansERP, including all Intellectual Property Rights therein.
b. Customer.
i. Customer Data. Notwithstanding anything to the contrary in the MSA, and except for the rights granted to Knowledge Transfer LLC under these Customer Terms, as between you and Knowledge Transfer LLC, you retain all rights, titles, and interests in the Customer Data, including all Intellectual Property Rights therein.
ii. License. You grant to Knowledge Transfer LLC a worldwide, royalty-free, non-exclusive, non-transferable (except in compliance with Assignment Section 17(c)), sublicensable license to use, distribute, host, copy, transmit, and display Customer Data as reasonably necessary for Knowledge Transfer LLC to provide and operate RadiansERP in accordance with these Customer Terms, including related internal purposes such as quality control, information security, prevention and detection of spam, fraud, and abuse, troubleshooting, and product improvement and development, including to train computational models and algorithms and generating outputs and data sets, and related/machine learning purposes provided that Knowledge Transfer LLC will not use Customer Data for model or algorithm training, generating AI-based outputs and data sets, or related machine learning, without your reasonable permission. Subject to the limited licenses granted herein, Knowledge Transfer LLC acquires no right, title or interest in any Customer Data. You are responsible for the accuracy, quality and legality of Customer Data and the means by which you acquired Customer Data.
c. Reservation of Rights. Neither party grants the other any rights or licenses (by implication, waiver, estoppel or otherwise) not expressly set out in these Customer Terms.
d. TPA: You may have access to TPAs through use of RadiansERP. All ownership and Intellectual Property Rights in and to TPAs and the use of such content is governed by separate third party terms between you and the third-party provider.
13. WARRANTY; DISCLAIMER
a. Mutual. Both you and Knowledge Transfer LLC represent and warrant that each: (i) have the legal power and authority to enter into these Customer Terms (for you, either on behalf of yourself or your Entity); (ii) shall carry out our obligations under these Customer Terms in material compliance with Applicable Law; and (iii) the performance of these Customer Terms do not violate any other agreement to which we are a party or by which we are otherwise bound.
b. Knowledge Transfer LLC. Knowledge Transfer LLC represents and warrants that: (A) RadiansERP will perform materially in accordance with the Documentation; and (B) RadiansERP will be reasonably scanned using commercially available scanning program designed to ensure RadiansERP is free of viruses, exploitable security vulnerabilities, malware and other harmful and malicious code (“Harmful Code”) (but we are not responsible for harmful materials submitted by Customer, Authorized Users, or Invitees).
i.Remedy. THIS SECTION 13(b)(i) STATES KNOWLEDGE TRANSFER LLC’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY BREACH OF WARRANTY UNDER THIS SECTION 13(b). In the event of non-conformance of this Section 13(b), you must promptly provide Knowledge Transfer LLC with written notice describing the material non-conformance with RadiansERP. Upon such notice, Knowledge Transfer LLC shall make a reasonable determination, in its sole discretion, as to the degree of the non-conformity and, if material use commercially reasonable efforts to correct such non-conformance. If Knowledge Transfer LLC cannot, in its sole discretion, correct such non-conformance within thirty (30) days from the date of notification, then you may terminate your Subscription and/or Account by providing written notice to us at [email protected]. Should you terminate these Customer Terms under this Section 13(b), subject to Section 13(b)(ii) below, Knowledge Transfer LLC may refund you a pro-rated portion of any prepaid, unused Fees for the terminated portion of the Subscription Term, subject to the MSA.
ii.Exclusions. Knowledge Transfer LLC shall have no obligation or liability under this Section 13(b) if the non-conformance is caused by or based on: (A) modifications to RadiansERP not made by Knowledge Transfer LLC; (B) use of RadiansERP in combination with any products, services, data (including Customer Data), software, hardware or business process not supplied by Knowledge Transfer LLC, including TPAs; or (C) use of RadiansERP in violation of these Customer Terms, including but not limited to the Acceptable Use Policy.
c.Customer. You represent and warrant, either on behalf of yourself as an individual Customer or on behalf of your Entity that: (A) you own the Customer Data and/or TPAs or otherwise have the right to use, and permit Knowledge Transfer LLC to use, the Customer Data and/or TPAs as contemplated under these Customer Terms; (B) the use of the Customer Data does not and will not violate the privacy rights, publicity rights, contract rights, Intellectual Property Rights, or any other rights of any third party, or violate Applicable Laws; and (C) the Customer Data does not contain: (x) protected health information or information subject to Health Insurance Portability and Accountability Act (“HIPAA”) compliance or other relevant law or regulation; (y) information subject to Sarbanes-Oxley Act (“SOX”), Gramm-Leach-Bliley Act (“GLBA”) requirements or other relevant law or regulation; or (z) information that falls within the definition of “special categories of data” under data protection laws.
i.Remedy. In the event of a breach, or reasonably anticipated breach, of the foregoing warranties, in addition to any other remedies available at law or in equity, Knowledge Transfer LLC shall have the right, in its sole discretion, to immediately suspend or terminate your access to RadiansERP if deemed reasonably necessary by Knowledge Transfer LLC to prevent any liability accruing to it.
d.DISCLAIMER. Except as expressly set out in these Customer Terms, and to the extent not prohibited by Applicable Law, each party disclaims all other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title and noninfringement. Except as expressly provided in this Section 13, RadiansERP is provided AS-IS and KNOWLEDGE TRANSFER LLC MAKES NO WARRANTY REGARDING ANY TPA WITH WHICH RADIANSERP MAY INTEROPERATE. THIS MEANS THAT WE DO NOT PROMISE YOU THAT RADIANSERP IS FREE OF PROBLEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY THAT RADIANSERP WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH RADIANSERP. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH RADIANSERP OR FROM US OR OUR SUBSIDIARIES/OTHER AFFILIATED COMPANIES WILL CREATE ANY WARRANTY. WE DISCLAIM ALL EQUITABLE INDEMNITIES.
14. INDEMNIFICATION
a.Knowledge Transfer LLC Indemnification. Subject to Section 15, Knowledge Transfer LLC shall defend you against any claim, demand, suit or proceeding made or brought against you by a third party (“Third-Party Claim”) alleging that RadiansERP infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify you from any damages, reasonable attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by Knowledge Transfer LLC in writing of, a Third-Party Claim.
i. Remedy. If Knowledge Transfer LLC receives information about an infringement or misappropriation Third-Party Claim related to RadiansERP, Knowledge Transfer LLC may in its sole discretion and at no cost to you: (A) modify RadiansERP so that they are no longer claimed to infringe or misappropriate, without breaching Knowledge Transfer LLC’s warranties under Section 13(b); (B) obtain a license for your continued use of that Service in accordance with these Customer Terms; or (C) terminate these Customer Terms or the applicable Order Form for the infringing Service upon thirty (30) days’ written notice and promptly refund you with a pro-rated portion of any prepaid, unused Fees for the terminated portion of the Subscription Term.
ii. Exclusions. Knowledge Transfer LLC’s obligations under this Section 14 do not apply to the extent a Third-Party Claim arises from or relates to: (A) Customer Data; (B) use of RadiansERP with TPAs; (C) modification or alteration of RadiansERP not made by Knowledge Transfer LLC; (D) your continued use of RadiansERP after notification by Knowledge Transfer LLC that RadiansERP or such use may be infringing; (E) your use of RadiansERP in breach of these Customer Terms; or (F) your failure to timely implement any updates, modifications, corrections, bug-fixes, or enhancements to RadiansERP made available by Knowledge Transfer LLC.
b.Customer Indemnification. You shall defend Knowledge Transfer LLC against any Third-Party Claim: (i) alleging that the combination of a TPA or configuration provided by you and used with RadiansERP, infringes or misappropriates such third party’s Intellectual Property Rights; or (ii) arising from (A) your use of RadiansERP in an unlawful manner or in violation of these Customer Terms, the Documentation, or Order Form, (B) any Customer Data or your use of Customer Data with RadiansERP, or (C) a TPA provided by you, and will indemnify Knowledge Transfer LLC from any damages, reasonable attorney fees and costs finally awarded against Knowledge Transfer LLC as a result of, or for amounts paid by Knowledge Transfer LLC under a settlement approved by Customer in writing of, a Third-Party Claim.
c.Procedure. The indemnified party will provide to the indemnifying party: (i) prompt notice of the Third-Party Claim (but delayed notice will only reduce the indemnifying party’s obligations to the extent it is prejudiced by the delay); (ii) the exclusive right to control the Third-Party Claim’s investigation, defense and settlement; and (iii) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle a Third-Party Claim without the indemnified party’s prior approval if settlement would require the indemnified party to admit fault or take or refrain from taking any action (except regarding use of RadiansERP when Knowledge Transfer LLC is the indemnifying party). The indemnified party may participate in a Third-Party Claim with its own counsel at its own expense.
d.Exclusive Remedy. This Section 14 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any Third-Party Claim.
15. LIMITATION OF LIABILITY
a. DISCLAIMER. IN NO EVENT WILL KNOWLEDGE TRANSFER LLC HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE CUSTOMER TERMS OR RADIANSERP FOR: (I) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, (II) THE DELAY OR INABILITY TO USE RADIANSERP, APIS OR ANYTHING PROVIDED IN CONNECTION WITH THESE CUSTOMER TERMS, (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY, OR (IV) LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST BUSINESS OR LOST SALES, OR LOST DATA; IN EACH CASE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF KNOWLEDGE TRANSFER LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF A REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
b.LIMITATION OF LIABILITY. IN NO EVENT WILL KNOWLEDGE TRANSFER LLC’S TOTAL AGGREGATE LIABILITY, UNDER OR IN CONNECTION WITH THESE CUSTOMER TERMS OR RADIANSERP, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE OR IF A REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE, EXCEED THE GREATER OF (I) THE FEES PAID OR PAYABLE TO KNOWLEDGE TRANSFER LLC HEREUNDER IN THE THREE (3) MONTHS PERIOD PRECEDING THE DATE THE CAUSE OF ACTION GIVING RISE TO SUCH DAMAGES FIRST AROSE OR (II) $2,500 USD.
c.Cause of Action. Notwithstanding anything to the contrary in the MSA, you may not institute an action in any form arising out of or in connection with these Customer Terms more than one (1) year after the cause of action has arisen unless such limitation is explicitly prohibited by Applicable Law.
16. DISPUTE RESOLUTION; CLASS ACTION WAIVER.
THE CLAUSES BELOW AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM CAREFULLY.
a. General. This Section 16 facilitates the prompt and efficient resolution of any Dispute that may arise between you and Knowledge Transfer LLC. “Dispute” includes but is not limited to any and all claims, disputes or controversy (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) arising out of or relating to the Customer Terms, including the breach, application, validity, interpretation or scope thereof, including the determination of the scope or applicability of these Customer Terms to arbitration, whether presently in existence or based on acts or omissions in the past or in the future. This Section provides that, except for the “Exceptions” identified below in Section 16(g), all Disputes between you and Knowledge Transfer LLC, which are unable to be resolved pursuant to the Pre-Arbitration Claim Resolution Section below, will be resolved exclusively and finally by binding arbitration rather than in court in accordance with this Section 16.
b. Pre-Arbitration Claim Resolution. For all Disputes, you must first give Knowledge Transfer LLC an opportunity to cure or resolve the Dispute which is first done by emailing us at [email protected] and providing us with the following information: (i) your name, (ii) your address, (iii) a written description of your claim, and (iv) a description of the specific relief you seek. If we do not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration.
c. Arbitration Procedures.
i. Initiation of Proceedings and Rules. If the Dispute is not resolved as provided in Section 16(b) above, either you or Knowledge Transfer LLC may initiate arbitration proceedings with the Judicial Arbitration and Mediation Service (JAMS). The arbitration shall be conducted in English before a single arbitrator and administered by JAMS in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Streamlined Arbitration Rules”) in effect on the date the arbitration is filed and will be governed by the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (the “JAMS Minimum Consumer Standards”). You may obtain copies of the current JAMS Streamlined Arbitration Rules, forms, and instructions for initiating an arbitration with JAMS by contacting JAMS online at www.jamsadr.com.
ii. Arbitrator and Venue. The arbitrator will be agreed to by the parties; provided, however, if the Parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry in accordance with the JAMS Streamlined Arbitration Rules. The place of arbitration shall be in the country where you reside unless otherwise agreed upon by the Parties.
iii.Federal Arbitration Act and Governing Law. The arbitrator will be empowered to determine the arbitrability of any Dispute between us and, because RadiansERP and these Customer Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) shall govern the arbitrability of all Disputes. However, unless the arbitrator determines it would be more appropriate to apply the substantive law or another U.S. jurisdiction or unless preempted by the FAA, the arbitrator will apply Florida state law and applicable U.S. federal law (without regarding to conflict or choice of law principles) consistent with the FAA and the applicable statute of limitations or condition precedent to commencing a Dispute.
iv. Remedies, Relief and Cost. Notwithstanding anything to the contrary in the MSA, this Section 16 shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator can award any damages or relief that a court of law could, including individual injunctive relief and reasonable attorneys’ fees when available under the governing law and will be final and binding on you and Knowledge Transfer LLC, without any right of appeal. The arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitrator’s award will address all claims properly brought before the arbitrator and will include the essential findings and conclusions upon which the arbitrator based the award. Judgment upon any such award may be enforced in any court of competent jurisdiction.
d. Class Action Waiver. The arbitration will be commenced as an individual arbitration and will in no event be commenced as a class arbitration. To be clear, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action). You acknowledge and agree that you are waiving any ability to join or consolidate your Dispute in arbitration with the Dispute of any other person and to bring any Dispute on a class basis, in a representative capacity, on behalf of the general public, or on behalf of any other person.
e. Conflict. Where there is a conflict or inconsistency between the JAMS Streamlined Arbitration Rules and procedures and this arbitration provision, this arbitration provision will govern. If any clause within this “Dispute Resolution and Arbitration” provision (other than the Class Action Waiver clause) is found to be illegal or unenforceable, that clause will be severed from this provision whose remainder will be given full force and effect. Notwithstanding anything to the contrary in the MSA, if the Class Action Waiver clause is found to be illegal or unenforceable, this entire provision will be unenforceable, and the dispute will be decided by a court. This “Dispute Resolution and Arbitration” provision will survive the termination of your Account with Knowledge Transfer LLC or our affiliates and your discontinued use of RadiansERP.
f. Confidentiality. Notwithstanding anything contrary in the MSA, You and Knowledge Transfer LLC agree that any arbitration proceedings initiated hereunder shall be kept in strict confidence, meaning that you and Knowledge Transfer LLC agree not to disclose or cause to be disclosed to any third party the Dispute(s) to be arbitrated hereunder, or any of the underlying facts, circumstances, documents, and other materials relating to such Dispute(s), except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law.
g. Exceptions. We each agree not to invoke our right to arbitrate any individual Dispute each of us may bring in small claims court or an equivalent court with jurisdiction, so long as the Claim is pending only in that court. This arbitration provision does not limit or constrain Knowledge Transfer LLC’s right to interplead funds in the event of claims to funds associated with payments you owe to several parties. Notwithstanding anything to the contrary in the MSA, to the extent a Dispute cannot legally be arbitrated (as determined by the arbitrator), the Parties will bring the suit, action, or proceeding that cannot be arbitrated according to Section 17(g) below.
17. MISCELLANEOUS
a.Entire Agreement and Order of Precedence. These Customer Terms, together with each Order Form and the DPA, Acceptable Use Policy and any applicable supplemental terms contain the entire agreement between you and Knowledge Transfer LLC and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Knowledge Transfer LLC and you about RadiansERP. In the event of any conflict between these Customer Terms, an Order Form, the DPA, Acceptable Use Policy, or any other supplemental terms or attachments hereto, the DPA and then these Customer Terms take precedence unless any applicable supplemental terms explicitly state otherwise. Any definitions found in the Privacy Notice, Acceptable Use Policy, FERPA COPPA Privacy Policy, and Data Processing Addendum are hereby adopted by reference in these Customer Terms. Acceptance of any order by Knowledge Transfer LLC is expressly limited to the terms and conditions of these Customer Terms. Any proposed additional or inconsistent terms or conditions, including those in or accompanying any Customer proposal, any Customer purchase order, or other agreement or any other Customer document issued in connection with the sale or delivery of RadiansERP is deemed by Knowledge Transfer LLC to be a material change and is objected to and rejected by Knowledge Transfer LLC. Knowledge Transfer LLC's acceptance of any orders will not constitute acceptance of any terms and conditions contained therein.
b.Publicity. You hereby grant Knowledge Transfer LLC a limited, non-exclusive, non-sub-licensable, non-transferable (except in compliance with Assignment Section 17(c)), royalty-free right and license (the "Trademark License") to use, display and reproduce Customer’s name, logo, trademarks and service marks (the "Trademarks") in Knowledge Transfer LLC’s marketing and promotional content and materials and on the Knowledge Transfer LLC and RadiansERP Websites. Each party acknowledges that Customer's Trademarks are and will remain the exclusive property of Customer. Knowledge Transfer LLC 's use of Customer's Trademarks shall be subject to Customer's reasonable usage guidelines provided to Knowledge Transfer LLC in advance in writing.
c.Assignment. Neither Party may assign these Customer Terms without the prior consent of the other Party, except that either Party may assign these Customer Terms, with notice to the other Party, in connection with the assigning Party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. These Customer Terms will bind and inure to the benefit of each party’s permitted successors and assigns.
d.Force Majeure. Neither Party is liable for a delay or failure to perform under these Customer Terms due to a Force Majeure. “Force Majeure” means an unforeseen event beyond a Party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failure, refusal of government license or natural disaster, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects. Customer in all cases remains responsible for its underlying payment obligations even if a delay is permitted pursuant to this Section 17(d).
e.Waiver; Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. Except as otherwise set forth in the Dispute resolution provision, if any of these Customer Terms are deemed inconsistent with Applicable Law, then such term(s) will be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Customer Terms, we are not waiving our rights.
f.Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 11 or, in the case of Customer, Section 2(b) or the Acceptable Use Policy, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
g.Governing Law; Venue. These Customer Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Florida. Except as otherwise expressly set forth in Section 16, the exclusive jurisdiction for all Disputes that you are not required to arbitrate will be the state and federal courts located in Seminole County, Florida.
h.Notice. You agree that any notices, agreements, disclosures, or other communications that Knowledge Transfer LLC sends you electronically will satisfy any legal communication requirements, including that such communications be in writing and will be deemed given upon delivery of email. For Knowledge Transfer LLC, any legal notices shall be sent to [email protected]. You agree to keep your contact information up to date, and to monitor your email settings to ensure that you receive emails from us at your discretion and as necessary.
i. Messages. By using Knowledge Transfer LLC RadiansERP, you consent to receive emails from us. These emails may include notices about applicable Fees and charges, transactional information and other information concerning or related to RadiansERP. You agree to keep your contact information up to date, and to monitor your email settings to ensure that you receive emails from us at your discretion and as necessary.
j. Use by or for the U.S. government. RadiansERP is a “commercial product,” “commercial service,” and “commercially off-the-shelf (COTS) item” as defined at 48 C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. This commercial computer software and related Documentation is provided to end users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein.