KigoPay Payment Services Agreement
Last updated: April 24, 2018
The following Kigo Terms of Service govern Client’s subscription to the Kigo Services (including, without limitation, the Kigo Marketplace Bundle and/or VAS services (collectively, “Kigo Services”) as selected through the execution of a Kigo Purchase Order (the “Purchase Order” or “Order Form”). As used herein, “You” means the party identified in an executed Order Form. The Agreement consisting of the Order Form and these Terms of Services will be effective as of the date set forth on the Order Form (the “Effective Date”). Please read these Terms of Service carefully before executing an Order Form or using any Kigo Services. By executing an Order Form or installing, accessing or using the Kigo Services, Client accepts these Terms of Service (including any terms incorporated by reference herein), and agrees and acknowledges as follows:
1. LICENSE TO USE THE KIGO SERVICES
The Kigo Services are protected by United States (“U.S.”) and international copyright laws, international treaty provisions and applicable law. Kigo hereby grants to You a non-exclusive, non-transferable, limited license to use the Kigo Services and related user documentation on the terms and conditions set forth herein. The Kigo Services are licensed only for Your use. You may use the Kigo Services only in accordance with the applicable documentation and to perform the functions for which they are designated and for the purpose authorized by these Terms of Service.
The Kigo Services are licensed on a subscription basis pursuant to the terms and conditions incorporated herein. We may provide updates to the Kigo Services on a periodic basis, and any such updates will replace the prior version of the Kigo Services. Each version of the Kigo Services may operate differently and may have different, more, or fewer features than prior versions. You shall not permit the use of any version of the Kigo Services by any other person nor shall You use the Kigo Services at any time after the license expires. Each update will be deemed to be part of the Kigo Services and shall be governed by these Terms of Service.
3. OWNERSHIP OF KIGO SERVICES, DATA AND CONTENT
Kigo is the exclusive owner of the Kigo Services and Your use of the Kigo Services does not provide You any right or interest in any of Kigo’s intellectual property, including but not limited to common designs, layouts, content, program code, scripts, database structures, proprietary strategies and processes, and other intellectual property of Kigo with the exception of user-uploaded content and data. Graphic designs or content created by Kigo specifically for You as part of Kigo’s professional service offering belong to You and can be used in other contexts; all other design elements (including customizable website templates) are the sole property of Kigo.
4. NO REVERSE ENGINEERING
You acknowledge that the Kigo Services and their structure, organization, and source code constitute valuable trade secrets of Kigo. Accordingly, You agree not to (a) modify, adapt, alter, translate, or create derivative works from the Kigo Services; (b) sublicense, lease, rent, loan, or otherwise permit a third party to use the Kigo Services; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Kigo Services; or (d) otherwise use the Kigo Services except as expressly allowed in these Terms of Service. You shall cooperate and make Your facilities, information, data and equipment available to Kigo in a timely manner when helpful for completion of customer specific implementation or troubleshooting.
5. CERTAIN RESTRICTIONS
Unless expressly and specifically permitted to do so under the terms of the Agreement, and then only in the exact manner specified, You may not (i) permit third parties to use the Kigo Services; (ii) remove or alter any trademark, service mark, logo, copyright, or other proprietary notices in or on the Kigo Services; (iii) place on any portion of the Kigo Services materials that are illegal, obscene, dangerous or libelous, or that violate, infringe or misappropriate any copyright, trademark, patent, trade secret, or other statutory or common law intellectual property right (Kigo reserves the right, but does not assume the obligation, to remove from any portion of the Kigo Services any content or materials that violate the provisions of these Terms of Service); (iv) access the Kigo Services if you are a direct competitor of Kigo, except with Kigo’s express written consent; or (v) access the Kigo Services for purposes of monitoring its availability, performance, or functionality, or any other benchmarking or competitive purpose. You agree not to use the Kigo Services, or any information obtained through the Kigo Services, for any unlawful or unauthorized purpose. You agree that Kigo has no obligation to retain any of Your content, data or material after the expiration or termination of the applicable Agreement and that such content, data or material may be irretrievably deleted after such expiration or termination.
You agree not to publicly criticize, ridicule, disparage or defame Kigo or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image (including, but not limited to, any statements made via websites, blogs, postings to the internet, or emails and whether or not they are made anonymously or through the use of a pseudonym). You agree to provide full cooperation and assistance in assisting Kigo to investigate such statements if Kigo reasonably believes that You are the source of the statements.
You agree not to register domain names that are derivatives of or deceptively similar to Kigo or its trademarks or that have the purpose or effect of criticizing, ridiculing, disparaging, or defaming Kigo, and its products, services, policies, directors, officers, shareholders, or employees.
6. AUTHORSHIP MARK AND CLIENT REFERENCES
You agree that Kigo can place a reasonably sized and positioned logo and/or text link on website pages and emails included in the Kigo Services, including on publicly accessible pages of Your website. You also agree that Kigo may reference its relationship with You for marketing purposes.
You or the person designated as the billing contact for Your Kigo account (“Billing Contact”), must provide Kigo with a valid credit card in order to activate Your account. You and/or Billing Contact may authorize Kigo to automatically charge a credit card for all services (including any VAS) that You (and/or Your representatives) request, whether through an Order Form, online through the Kigo Services, or otherwise. Alternatively, You and/or Billing Contact can arrange for pre-payment of at least six months’ estimated charges and pay by ACH bank wire or credit card. Upon receiving notice that Your balance has reached $500 or less, You and/or Billing Contact must send another pre-payment equal to or greater than the first pre-payment. The 10% “credit” for making a pre-pay is only applicable to the initial pre-payment and prepaid amounts are not refundable. Failure to either send additional funds or switch to the credit card option and pay any past due amounts could result in suspension of Your services. You and/or Billing Contact will receive a receipt for all payments processed against the credit card or account by email and/or fax. If paying by credit card, Billing Contact agrees to keep credit card information updated, and to provide Kigo with a new valid account number if the old card is deactivated or does not have sufficient credit available to pay Your fees. Kigo reserves the right to place Your account on hold, suspend Your access to the Kigo Services and/or terminate the applicable Agreement or other services if You are overdue in paying Kigo any amounts due for Kigo Services access or other services You request. If You wish to dispute any fee that Kigo has charged to Billing Contact’s credit card, You agree to discuss such dispute with Kigo and work towards a resolution. You expressly agree not to dispute fees with Your issuing credit card company, which could result in a “chargeback” to Kigo. Declined, refused and/or returned payments may result in a $50.00 service charge payable immediately. Billing Contact and payment information must be kept current at all times and changes provided to Kigo within 30 days of such changes. Notice should be sent to email@example.com.
8. CUSTOMER CONTENT
9. USE OF KIGO SERVICES
You hereby agree as follows: (i) You shall not use the Kigo Services for “spamming,” as determined by Kigo in its reasonable discretion; (ii) You shall keep secure any identification, password and other confidential information relating to Your site and shall notify Kigo immediately of any known or suspected unauthorized use of Your site or breach of security, including loss, theft or unauthorized disclosure of passwords or other security information; (iii) You shall not use the Kigo Services for any unlawful purpose; (iv) You shall not engage in any other conduct that restricts or inhibits any other person from using or enjoying the Kigo Services, or which, in the judgment of Kigo, exposes Kigo, or any of its customers or suppliers to any liability or detriment of any type; and (vi) You shall be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed for access to and use of the Kigo Services, and You shall be responsible for all charges related thereto. The Kigo Services allow You to send emails to people with whom You have an existing business relationship. All emails sent must comply with applicable laws and contain an opt-out link and full address information. Unless explicitly authorized by Kigo, You are not allowed to send more than two thousand five hundred (2,500) emails per month through the Kigo Services.
You agree to use Your best efforts to prevent access to the Kigo Services through login and password by anyone other than Yourself, including but not limited to keeping such information strictly confidential, notifying Kigo immediately if You discover loss of such information or access thereto by another party not under Your control and supervision, and by using a login and password not easily guessed by a third party. Although Kigo will not be liable for Your losses caused by any unauthorized use of Your account, You may be liable for the losses of others due to such unauthorized use.
11. INTERNATIONAL CUSTOMERS
You may not access, download, use or export the Kigo Services, or the content provided on or through the Kigo Services, in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all applicable foreign and domestic export laws, restrictions and regulations, and to not directly or indirectly provide or otherwise make available any services or products of Kigo in violation of any such restrictions, laws or regulations. As applicable, you shall obtain and bear all expenses related to any necessary licenses, authorizations, and/or exemptions with respect to your own use of the services of Kigo outside the U.S. Neither the services or products of Kigo nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, into any country subject to U.S. trade sanctions (Supplement No. 1 to Part 740, Export Administration Regulations, Country Group E:1), to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions. By agreeing to these Terms of Service, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list. You further agree to provide Us such information as We may request from time to time to confirm compliance with the foregoing and, without limiting any other rights We may have hereunder, You agree that Your rights to access the Kigo Services may be suspended or terminated at any time pending receipt of information satisfactory to Kigo to confirm compliance with the foregoing and all applicable laws.
12. LINKS AND THIRD PARTY SERVICES
The Kigo Services may include links to third party service providers and integration resources. When You engage such third party providers, You authorize Kigo to transmit to such providers information about You and your properties that is stored in the Kigo Services as requested by such third party providers. You acknowledge and agree that Kigo (i) is not responsible for the availability of such external sites or resources and (ii) is not responsible or liable for any content, advertising, products, services or other materials made available by such third parties or through such sites or resources, even if such third party is identified as a Kigo “portal partner,” “preferred partner” or any similar designation, or if such third party’s services have been “certified” as being compatible with the Kigo Services. You further acknowledge and agree that Kigo shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, advertising, products or services made available by such third parties or through any such site or resource.
13. KIGOPAY PAYMENT SERVICES
For U.S. based Kigo Marketplace Bundle Clients processing payments using KigoPay, the following terms are incorporated by reference and govern such Client’s use of the KigoPay services: KigoPay Domestic Terms. For non-U.S. Kigo Marketplace Bundle Clients processing payments using KigoPay, the following terms are incorporated by reference and govern such Client’s use of the KigoPay services: KigoPay International Terms.
15. EUROPEAN UNION DATA TRANSFERS
Data processed on behalf of Clients located within the European Union is subject to the supplemental privacy requirements set forth in the RealPage Privacy Shield Statement.
16. MODIFICATIONS TO TERMS AND POLICIES
Kigo reserves the right to modify these Terms of Service, the foregoing policies, and the other terms and conditions set forth on any Kigo Service or website, without prior notice, at any time and from time to time. Any such modification is effective upon the posting of same by Kigo on its website. Kigo also may notify You of any modifications by email or other correspondence to Your designated contact address. Kigo recommends that You review these Terms of Service periodically for any changes that may have been made. Your continued use of the Kigo Services or websites subsequent to any such changes means that You agree to be bound by those changes. The most current version of these Terms of Service and such polices supersedes all previous versions.
THE KIGO SERVICES AND ALL INFORMATION PROVIDED BY KIGO IN CONNECTION WITH THE KIGO SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY OTHER WARRANTY, CONDITION, GUARANTY, OR REPRESENTATION, WHETHER ORAL OR IN WRITING, AND YOU ACCEPT THE KIGO SERVICES, AS GENERALLY PROVIDED OR AS CUSTOMIZED FOR YOUR USE, AT YOUR OWN RISK. KIGO’S SYSTEM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KIGO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
18. LIMITATION OF LIABILITY
IN NO EVENT SHALL KIGO OR ANY OF ITS AFFILIATED OR RELATED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE KIGO SERVICES, THIS AGREEMENT OR THE PARTIES’ ACTIVITIES HEREUNDER, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND EVEN IF KIGO IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT LIABILITY IS ASSESSED AGAINST KIGO OR ANY OF ITS AFFILIATED OR RELATED PARTIES, THE AGGREGATE LIABILITY OF SUCH PARTIES SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY CLAIMS ARISING IN CONNECTION WITH YOUR USE OF THE KIGO SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE THAT THE EVENT GIVING RISE TO SUCH ACTION OCCURRED.
Kigo’s relationship with You shall be that of an independent contractor and nothing in these Terms of Service shall be construed to create a partnership, joint venture, or employer-employee relationship. You shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to the license to or use of the Kigo Services. Kigo may subcontract or otherwise delegate its obligations under these Terms of Service without Your consent and in Kigo’s sole discretion.
“Confidential Information” means non-public, confidential or proprietary information created or acquired by Kigo or its Affiliates, including, without limitation, business plans, partnership/affiliation arrangements, client lists, financing arrangements, technical data, marketing plans, software, source codes, programming techniques, ranking techniques, sources of services and goods, costs, profits, methods of obtaining new clients, payments and pay structure, login and passwords, tracking codes, competitive analyzes, personnel information, and financial data. Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of disclosure by You or anyone to whom You transmit the information, (ii) becomes available to You on a non-confidential basis from a source other than Kigo who, to Your knowledge, is not bound by a confidentiality agreement with Kigo, (iii) was rightfully known to You or in Your possession without restriction prior to the date of disclosure by Kigo, or (iv) is independently developed by You without benefit of or reference to the Confidential Information. You agree not to publish, disclose, copy, disseminate or in any manner utilize Confidential Information, in Your business or otherwise, for any purpose other than as contemplated herein unless compelled to do so by subpoena or compliance with other applicable law, prompt prior notice of which will be given to Kigo. However, You may disclose the Confidential Information to any of Your Affiliates who have a legitimate need to use the Confidential Information under these Terms of Service, provided You shall remain liable for such Affiliate’s use of the Confidential Information and compliance with these Terms of Service. You shall use commercially reasonable efforts to protect and prevent disclosure of the Confidential Information.
21. CONSENT TO RECEIVE ELECTRONIC RECORDS
By using the Kigo Services, You signify Your express consent to receive information from Kigo in electronic format. You will need a computer with browser, email and Internet access to receive such electronic records, and You also may need Adobe Acrobat Reader, available for free at www.adobe.com. Electronic records may include terms and conditions, agreements, privacy policies, and other items that You should print and retain for Your records.
You hereby agree to indemnify and hold Kigo and its Affiliates and related parties, and their respective officers, directors, employees and agents harmless from and against any damages, losses, liabilities, judgments, costs or expenses (including reasonable attorneys’ fees and costs) arising out of any claim made by a third party relating to Your use of the Kigo Services or any breach or violation of these Terms of Service or the applicable Agreement.
The right to access the Kigo Services is personal to You and You may not transfer by assignment, sublicense, or any other method the service or the right to access or use the Kigo Services to any other person or entity. Any attempt by You to transfer Your rights or obligations under these Terms of Service or any applicable Agreement without obtaining the prior written consent of Kigo (including, without limitation, by operation of law or through Your change of ownership) shall be null and void. You agree that Kigo may assign its rights and/or delegate its obligations under these Terms of Service or any applicable Agreement to any third party, including its Affiliate, in Kigo’s sole discretion and without notice.
Kigo’s failure to act with respect to a breach by You or others of these Terms of Service or any applicable Agreement does not waive Kigo’s right to act with respect to subsequent or similar breaches.
YOU HEREBY REPRESENT TO KIGO THAT YOU ARE AT LEAST 18 YEARS OLD AND ARE AUTHORIZED TO AGREE TO AND ENTER INTO THESE TERMS OF SERVICE, AND ANY APPLICABLE AGREEMENT. YOU ARE ALSO REPRESENTING THAT YOU ARE ENTERING INTO THESE TERMS OF SERVICE AND ANY APPLICABLE AGREEMENT ON YOUR OWN BEHALF, HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO SUCH TERMS AND AGREEMENT, AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH HEREIN. AT ANY TIME UPON REQUEST BY KIGO, YOU AGREE TO SIGN A NON-ELECTRONIC VERSION OF THESE TERMS OF SERVICE AND ANY APPLICABLE AGREEMENT AND ANY OTHER AGREEMENTS OR STATEMENTS REASONABLY NECESSARY FOR KIGO TO PROVIDE AND ACCOUNT FOR THE KIGO SERVICES.
26. GOVERNING LAW
The Kigo Services (excluding third party linked sites) are controlled by Kigo from its offices within the State of Texas. It can be accessed from all 50 states in the United States as well as from other countries around the world to the extent permitted by site. As each of these places has laws that may differ from the laws of the State of Texas, by accessing the Kigo Services, both You and Kigo agree that the statues and laws of the State of Texas shall apply to any actions or claims arising out of or in relation to these Terms of Service or Your use of the Kigo Services, without regard to conflicts of laws principles thereof. You and Kigo also agree and hereby submit to the exclusive personal jurisdiction of and venue in the State of Texas and agree that any claim with respect to these Terms of Service or the subject matter hereof or activities hereunder shall be filed only in the courts of the Dallas County, Texas, and agree that any legal proceedings shall be conducted in English. Kigo makes no representation that the Kigo Services or any materials on our various websites are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is prohibited. These Terms of Service shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. You agree not to engage in any class action claim against Kigo.
27. FORCE MAJEURE
Neither party will be deemed in breach of these Terms of Service to the extent that performance of its obligations are delayed or prevented by reasons of force majeure, such as riots, acts of terrorism, fire, flood, earthquake, acts of government and the like, provided that such party gives the other party written notice thereof promptly and uses its best efforts to continue to perform its obligations.
28. ENTIRE AGREEMENT
These Terms of Service (including any terms incorporated by reference herein), together with any applicable Order Form, comprise the entire agreement between You and Kigo and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between You and Kigo regarding the subject matter contained herein. Any purported oral or written modification to these Terms of Service that is not expressly contained in the currently posted Terms of Service shall be null and void unless memorialized in a writing signed by both You and Kigo. Notwithstanding the foregoing, nothing contained in this section shall prohibit or limit Kigo from modifying these Terms of Service, with such modifications effective upon the posting of same by Kigo on its website.
The following definitions have the meanings assigned to them whenever capitalized throughout these Online Order Terms. Other capitalized terms in these Online Order Terms have the meanings assigned to them in the Order Form. “Affiliates” shall mean a person or entity, directly or indirectly controlled by, controlling, or under common control with another person or entity. “Authorized User” shall mean any staff or contractor employed by Client, property owners with properties managed by Client and vendors with which Client has a formalized business arrangement. “Booking Data” shall mean information regarding all current and future reservations related to a property. “Client Data” shall mean Personal Data that Kigo processes on Client’s behalf in the course of Client’s use of the Kigo Services, including Personal Data relating to customers of Client, property owners with properties managed by Client, and vendors with which Client has a formalized business relationship. “Kigo App” shall mean the web-based control panel used to manage Client’s Kigo Services. “Kigo Partner” shall mean a company that has entered into an agreement with Kigo to offer services to Kigo Customers. “Kigo Preferred Partner” shall mean a company that has entered into a preferred agreement with Kigo to offer services to Kigo Customers. “Per Booked Night Fee” shall mean the recurring fee per reservation night indicated on an Order Form that corresponds to a reservation during the applicable month that is associated with Property Information in the Kigo Services. Reservations without guest charges are excluded. “Property Data” shall mean full descriptive information for each rental Unit that Client wishes to include in the Kigo Services, including but not limited to the property name, description, location, amenities, calendar, rates, photos and other appropriate information. “Property Information” shall mean Property Data and Booking Data. “Property Sharing” shall mean the ability for one Kigo Client to market and make reservations of another Kigo Client’s Units. Property Sharing requires agreement of both Kigo Client parties, and the availability of suitable properties is not guaranteed by Kigo. Special Per Booked Night Fees apply to shared property reservations. “Unit” is a rental unit entered into the Kigo Services by You.
30. PROPERTY INFORMATION
Client will use the Kigo Services as its primary property management software. Client agrees to provide Kigo with complete and accurate Property Information regarding Units managed through the Kigo Services, including information regarding guest charges and payments made via the Kigo Services, as well as any other descriptive information related to such Units, in a mutually agreeable electronic data transmission format or through manual data entry performed by Client through the Kigo Services. Client represents and warrants that this Property Information shall be true, complete and accurate and that Client has the authority to provide the information to Kigo.
31. HOSTING PLATFORM
Client understands and agrees that: (i) the Kigo software, services, web services and websites comprise a web-based property management system and an online platform through which Client may create listings for accommodations offered for rent by Client or its customers, and through which prospective renters may gather information about such accommodations and their availability and enter into rental or other business transactions with Client or its customers; (ii) Kigo is not a real estate broker, agent, insurer, or booking agent; (iii) Kigo is not a party to any rental or other agreement between Client (or its customer) and a guest who rents a Unit or engages in any other transaction with Client (or its customer); and (iv) Kigo shall not have any authority to accept or reject a rental application or other offer to contract with Client or its customer; such authority rests solely with the Client or its customer.
32. KIGO PARTNER RELATIONSHIPS
If Client chooses to activate any services provided by a Kigo Preferred Partner or Kigo Partner, Client grants the explicit right for Kigo and the Kigo Preferred Partner or Kigo Partner to share Property Information and other Client information, including but not limited to customer and reservation data and Client Data for operational, billing and auditing purposes. See Section 14 above for additional terms regarding links to, and services provided by, third party providers.
33. KIGO APIs
If Client chooses to integrate using a Kigo application programming interface (“API”), Client acknowledges and agrees that such integration requires Client resources experienced in the implementation and operation of APIs. Client will be solely responsible for any development required to integrate any Kigo API with Client’s systems and/or applications. If Client requires Kigo technical consulting services, then Kigo will provide such services on a time and materials basis at Kigo’s then-current standard consulting rate. In such event, the parties will execute a mutually acceptable written statement of work to identify the scope of work to be performed, the rate to be charged, and any other appropriate terms and conditions. The Kigo APIs may be accessed and used by Client solely to develop interfaces (as applicable) to view booking and property information, and to access third party channel-centric pricing and availability data, booking rules, booking engine, and to make and secure a reservation—all in a manner and form in accordance with the Agreement and otherwise acceptable to Kigo. Client will not modify, adapt, translate, reverse engineer, decompile, disassemble or convert into human readable form any of the Kigo APIs. Client will not use the Kigo APIs for any purpose that is unlawful or prohibited by the Agreement, or to undertake or facilitate any other activity that infringes the intellectual property or other rights of Kigo, its Affiliates, its other clients, or any other third party. All portions of the Kigo APIs, and any modifications, improvements or enhancements to the Kigo APIs, are and will remain at all times the sole and exclusive property of Kigo, and Client will have no right, title or interest therein, except for the license rights expressly provided in the Agreement.
34. INVOICING AND BILLING
Kigo shall bill Client the fees in the manner set forth in the Order Form. A late charge equal to the lesser of 1½% per month or the highest rate allowed by applicable law will be assessed on unpaid amounts over thirty (30) days past due.
In addition to the above terms, these Value-Added Service (“VAS”) Terms will form part of the Terms of Service applicable to the purchase of the following VAS’s:
KIGO CONTACT CENTER
The following terms apply to the Kigo Contact Center Services:
1. Kigo Contact Center Services: The Kigo Contact Center Services will be provided in accordance with certain “Product Specifications.” The most current version of the Product Specifications may be found at www.kigo.net/contactcenter, the terms of which are incorporated herein by this reference. Kigo may change the Product Specifications or discontinue or revise any and all aspects of the Kigo Contact Center Services or any of the functionality of such services at its sole discretion from time to time during the term of the Services Agreement; provided however, Kigo shall not change the Product Specifications or discontinue the Kigo Contact Center Services or any of the functionality of such services in a manner that would modify or remove material functionality of such Services without prior written notice to Client, unless prior notice is not reasonably practicable in order to permit Kigo to comply with any laws or third-party licensing requirement. In the case of a conflict between these Terms of Service and the Product Specifications, the terms of the Product Specifications shall prevail.
2. Client Obligations: Client shall be responsible for testing and confirming the accuracy and functionality of all phone numbers and e-mail addresses assigned to Client by Kigo prior to using them in its listings. In addition, Client shall cooperate fully with Kigo and its agents and provide all assistance as reasonably necessary for Kigo to perform the Kigo Contact Center Services, including, without limitation, providing prompt access to Client’s personnel, equipment, systems and other information and resources reasonably required by Kigo to perform the Kigo Contact Center Services.
3. Recording of Telephone Conversations:
Calls between Kigo and Prospective Renters: Kigo will disclose to all incoming callers that the call may be recorded.
Calls between Client Employees and Prospective Renters or Other Parties: The recording of telephone conversations is subject to regulation under certain state and federal laws. Depending upon applicable law, Client may be required to obtain consent from Client personnel in order to lawfully record incoming or outbound telephone calls at the Client’s offices. With respect to incoming and outbound telephone calls at Client’s offices, Client bears sole responsibility for procuring all required consents. Client should consult with its own legal counsel for all issues concerning the recording of telephone conversations. Client hereby agrees to notify any present and future employee whose duties include answering telephone calls that his/her conversations may be recorded and reviewed. Client represents to Kigo that it shall notify all affected employees that their phone calls may be recorded and, at Kigo’s request, shall either (1) provide to Kigo evidence of Client policies requiring that such employees be notified of the fact that certain conversations may be recorded; or (2) present to Kigo signed acknowledgements by its employees and agents that they are aware that certain conversations may be recorded. Client acknowledges that these representations and obligations are essential to the ability and a condition precedent to the obligation of Kigo to provide certain call recording services.