Terms of service
Last Modified: March 10, 2022
Kayhan SaaS Services Terms and Conditions, including the Order Form (if any) which by this reference is incorporated herein (collectively, this “Agreement”), constitute a binding contract between the person or entity identified on the Order Form (if any) or authorized to use the Services (“Customer”) and Kayhan Space Corp, a Delaware corporation with a place of business at 1630 30th St Ste A-266, Boulder, CO 80301 (“Company”). The “Order Form” referenced herein means the order form executed by or on behalf of Customer and Company regarding the Customer’s order and use of the Services provided by Company. Capitalized terms used and not defined herein shall have the respective meanings given them in the Order Form.
THESE KAYHAN SAAS SERVICES TERMS AND CONDITIONS AND THIS AGREEMENT TAKE EFFECT WHEN CUSTOMER EXECUTES THE ORDER FORM OR ACCESSES THE SERVICES (the “Effective Date”). BY EXECUTING THE ORDER FORM OR BY ACCESSING OR USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT HE, SHE, OR IT HAS READ, UNDERSTANDS, AND ACCEPTS, AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY THESE KAYHAN SAAS SERVICES TERMS AND CONDITIONS AND THIS AGREEMENT.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, and conditioned on Customer’s payment of any Fees set forth in the Order Form (if applicable), Company grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Customer and its authorized users in accordance with the terms and conditions herein, and will use commercially reasonable efforts to provide Customer the Services in accordance with the “Service Level Terms” set forth in or attached to the Order Form. As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel, passwords it deems inappropriate.
1.2 Subject to the terms hereof, and conditioned on Customer’s payment of Fees, Company will provide Customer with reasonable technical support services in accordance with the terms as and to the extent set forth in the Order Form or an attachment thereto.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not, directly or indirectly, and shall not permit any of its authorized users to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement, Company’s standard published policies then in effect (if any) that are delivered or identified to Customer, (the “Company Policies” and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of this Agreement, the Company Policies, or applicable laws or regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing and may suspend Customer’s access to the Services if the Company believes that Customer’s use may be (or is alleged to be) in violation of the foregoing or otherwise disrupts or poses a security risk to the Company, the Service, or the Software or to any other customer or vendor of the Company.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 3.1 with respect to any Proprietary Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Proprietary Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its representatives.
3.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Customer will pay Company the then applicable fees (if any) described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply (A) with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement or where Customer violates this Agreement or (B) where the liability or claim arises out of or results from Customers negligence or more culpable act or omission (including recklessness or willful misconduct) or violation of applicable law. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY, INCLUDING THE INACCURACY OF THE SERVICE OR ANY SATELLITE COLLISION DETECTION OR AVOIDANCE RECOMMENDATION RELATED THERETO, OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY SATELLITE COLLISION DETECTION OR AVOIDANCE RECOMMENDATION OR ANY DAMAGE, LOSS, OR LIABILITY RESULTING THEREFROM; (C) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (D) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (E) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT RESPONSIBLE FOR ANY SATELLITE COLLISION DETECTION OR AVOIDANCE RECOMMENDATION MADE TO CUSTOMER AND THAT CUSTOMER BEARS SOLE RESPONSIBILITY FOR ITS DECISION TO ACCEPT, REJECT, OR IGNORE, OR ACT ON OR NOT ACT ON, ANY SUCH SATELLITE COLLISION DETECTION OR AVOIDANCE RECOMMENDATION AND ANY DAMAGE, LOSS, LIABILITY, OR OTHER EFFECT RESULTING THEREFROM.AS AND TO THE EXTENT CUSTOMER ORDERED THE SERVICES THROUGH A THIRD PARTY, CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT RESPONSIBLE FOR ANY ACTIONS OR PRODUCTS OR SERVICES OF SUCH THIRD PARTY AND IS NOT SUBJECT TO OR RESPONSIBLE FOR, AND DOES NOT ENDORSE, ANY TERMS OR CONDITIONS OR AGREEMENTS THAT CUSTOMER MAY HAVE OR BE SUBJECT TO DIRECTLY WITH SUCH THIRD PARTY AND THAT CUSTOMER IS SUBJECT TO THESE SAAS SERVICES TERMS AND CONDITIONS AND THIS AGREEMENT WITH RESPECT TO THE SERVICES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Customer acknowledges and agrees that Company may modify the terms of these Kayhan SaaS Services Terms and Conditions and that modified terms become effective on posting. Customer will be notified of modifications as provided in the Order Form. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. Upon the request of Company, the parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.