THESE TERMS OF SERVICE (THIS “AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU (“CUSTOMER”) AND Kevala Technologies, Inc. a Delaware corporation with its principal place of business at the address 218 MAIN ST #756, KIRKLAND, WA 98033 (“Kevala”) AND SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH KEVALA AGREES TO GRANT ACCESS AND USE CERTAIN KEVALA PRODUCTS AND SERVICES.
BY USING THE KEVALA PLATFORM, OR OTHERWISE ACCEPTING THE TERMS IN CONNECTION WITH YOUR INTERACTION WITH THE KEVALA PLATFORM, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE REFERENCES TO “CUSTOMER,” “YOU” AND “YOUR” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY. IF YOU HAVE NEGOTIATED A SIGNED MASTER SERVICES AGREEMENT WITH KEVALA THAT GOVERNS SERVICES PURCHASED, THAT SIGNED MSA, AND NOT THESE TERMS WILL APPLY TO YOUR PURCHASE.
1.1 Service Offering. Kevala shall make available to Customer the Kevala hosted software as a service platform (referred to herein as, the “Kevala Platform” or the “Service”), including any specific functionality specified in an applicable order for services placed with Kevala (each an “Order”). For the sake of clarity, an Order may be a signed document, but may also be a form or request for service that the Customer submits through the Kevala Platform. Use of the Kevala Platform is subject to the limitations set forth in this Agreement, on the Kevala Platform itself or in an applicable Order. From time to time and at no charge to Customer, Kevala shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement.
1.2 Restrictions and Conditions. Customer shall not, directly, indirectly or through its users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) "frame," "mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Kevala technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with the Kevala online products and services; (f) circumvent or disable any security features or functionality associated with Service; or (g) use the Service in any manner prohibited by law. All rights not expressly granted to Customer are reserved by Kevala, its suppliers and licensors.
1.3 Return of Hosted Data. If requested by Customer within sixty (60) days of the expiration or termination of this Agreement, Kevala shall make available to Customer all Customer data stored within the Service at the time of expiration or termination. Sixty (60) days after termination, Kevala shall have no further obligation to Customer and may, at its option, permanently delete or destroy the Service and all information and materials contained therein.
ADDITIONAL Services. Additional services, including staffing services, may be separately purchased from Kevala under the terms of an addendum to this Agreement.
3.1 Fees and Payment Terms. If Customer uses paid services offered by Kevala through the Kevala Platform, then Customer shall pay Kevala the amounts specified in each applicable Order (“Fees”). Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Customer shall be solely responsible for the payment of any Sales Taxes. In the event Kevala is required to pay Sales Taxes on Customer’s behalf, Customer shall promptly reimburse Kevala for all amounts paid. All amounts shall be paid to Kevala within thirty (30) days of receipt of an undisputed invoice. An invoice shall be deemed undisputed if, within such thirty (30) day period, Customer fails to notify Kevala in writing of any disputed amounts. Undisputed fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Kevala may upon notice, suspend access to the Service for nonpayment of undisputed fees. Amounts payable to Kevala shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Kevala. Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage, payment obligations are non-cancelable, fees paid are non-refundable, and the scope of the services cannot be decreased during the relevant subscription term.
3.2 Compliance with Laws. The Kevala Platform and its associated software are of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights.
CONFIDENTIALITY. Each party agrees not to use Confidential Information provided to it by the other for any purpose other than the performance of its rights and obligations under this Agreement and shall disclose Confidential Information of the other only to: (i) their attorneys, accountants and other professional advisors; (ii) potential successors in interest to the extent required in connection with a sale or assignment; (iii) a court or judicial body of competent jurisdiction who has demanded disclosure of such Confidential Information by order, and only if the party: (a) gives prompt and detailed notice of the demand including the Confidential Information demanded and the purpose of the demand, (b) cooperates with the other party in contesting the demand, and (c) in any event, only discloses Confidential Information to the extent necessary to protect or enforce its legal rights or to defend itself; and (v) to the extent otherwise required by law. As between the parties, each party acknowledges that the disclosing party shall at all times be and remain the sole owner of its Confidential Information and the recipient of any Confidential Information shall use efforts consistent with the manner in which it protects its own Confidential Information but in no case less than commercially reasonable efforts to preserve the confidentiality of any Confidential Information of the other party. For the purpose of this agreement, “Confidential Information” means non-public information of a party disclosed by that party to the other party. Confidential Information shall not, however, include any information which the recipient can establish: (i) was or has become generally known or available or in the public domain without direct or indirect fault, action, or omission of the recipient; (ii) was known by the recipient prior to the time of disclosure, according to the recipient’s prior written documentation; (iii) was received by the recipient from a source other than the discloser, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by the recipient, where such independent development has been documented by the recipient.
5.1 Ownership of Customer Data. Customer will retain all right, title and interest to the content and data provided by Customer to Kevala through its use of the Service (“Customer Data”). Customer is solely responsible for the accuracy and legality of Customer Data, posted or transmitted via Kevala’s Services, and Customer represents and warrants that it has sufficient rights to use the Customer Data in connection with the Service, and grant the license set forth below.
5.2 Limited License to Kevala. By submitting any Customer Data to Kevala in connection with Customer’s use of the Services, Customer hereby grants Kevala a limited license to use, copy, modify, create derivative works, publicly perform and distribute such content and data for the purpose of providing Customer with the Services, and for the purpose of improving Kevala’s products and services.
5.3 Customer Submissions. By submitting open shift information to Kevala, Customer acknowledges that this data will be made available to others on the Service. Notwithstanding anything to the contrary in this Agreement, any PII contained within the Customer Data, including without limitation profile information about employees or workers, is owned by the subject individual, and may be used by the subject individual in connection with its own independent use of the Kevala services.
5.4 Anonymous Statistical Data. Notwithstanding anything else in this Agreement or otherwise, Kevala may monitor use of the Service and use data and information related to such use in an aggregate manner, including to compile statistical and performance information related to the provision and operation of the Service, but in each case in a manner that is anonymized and does not identify Customer or its users (“Aggregated Statistics”). Kevala may use or distribute Aggregated Statistics for any purpose, provided that such data and information is anonymized and does not identify Customer or its users.
6.1 Term. This Agreement will continue in effect until terminated by either party upon notice to the other, except that if Customer has entered into a subscription commitment as part of an applicable Order, unless otherwise specified in the Order, this Agreement will run for the duration of the applicable subscription term, and will automatically renew for for additional periods of one (1) year unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the current subscription term (collectively, the “Term”).
6.2 Termination. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof.
6.3 Effect of Termination. Upon expiration or termination for any reason, Customer shall discontinue all use of the Service.
7.1 Customer. Customer shall indemnify and hold Kevala, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of a third party claim that the Customer Data infringes or misappropriates the intellectual property or proprietary rights of such third party, or Customer’s failure to comply with the terms of this Agreement (including applicable Addenda) or applicable law.
7.2 Kevala. Kevala shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of a third party claim that the Service infringes or misappropriates the intellectual property or proprietary rights of such third party, or Kevala’s failure to comply with applicable law. This obligation shall not apply if the alleged infringement, misappropriation or failure to comply with law, results from the use of the Service in conjunction with any other software or service.
7.3 Process. A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.
8.1 Mutual Warranties. Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY KEVALA, ITS SUPPLIERS AND ITS LICENSORS. KEVALA SHALL NOT BE LIABLE FOR ANY ACTION OR FAILURE TO ACT BY CUSTOMER, ITS USERS, OR OTHERS AS A RESULT OF THE ITS USE OF THE KEVALA SERVICE.
8.3 CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS. KEVALA IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND KEVALA’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY KEVALA.
8.4 Limitation. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS OR VIOLATIONS BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S EXCLUSIVE REMEDY AND THE OTHER PARTY’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE GREATER OF ONE HUNDRED DOLLARS, OR THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT EITHER PARTY’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.
8.5 Exclusion of Certain Damages and Limitations of Types of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF THIS AGREEMENT . THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.
Survival. Certain provisions contained in this Agreement, which by their terms are intended to survive the termination of this Agreement, shall survive the termination, cancellation, or completion of performance of this Agreement. These provisions include but are not limited to: Sections 4 (Confidential Information), 6 (Term and Termination), 7 (Indemnification), 8 (Warranty/Liability/Total Liability), 10 (Notice and Requests), 11 (Additional Terms), 14 (General) and any payment obligations.
Notices and Requests. Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement. All additional access licenses purchased by Customer during the Term shall be subject to the terms of this Agreement. For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase and all other changes to this Agreement shall be governed by terms of Section 11, below. Upon written consent by Customer, Kevala may use Customer’s name and/or logo on Kevala’s website or for other promotional purposes through Customer’s primary contact, as designated in Customer’s Order.
Additional Terms / CHANGES TO TERMS. We may amend these Terms of Service at any time by publishing revised version on our Kevala Platform and/or by sending an email to the address provided by Customer. By using the Kevala Platform after changes have been posted to these Terms of Service, Customer agrees to the revised Terms. Kevala shall not be bound by any subsequent terms, conditions or other obligations included in any Customer purchase order, receipt, acceptance, confirmation or other correspondence from Customer unless expressly assented to in writing by Kevala and counter-signed by its authorized agent. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.
Force MAJEURE. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control.
NON-SOLICITATION. Customer agrees not to directly or indirectly solicit or induce for employment, or employ or engage as an independent contractor, any Kevala personnel during the term of this Agreement and for a period of six (6) months thereafter without the prior written consent of the other party.
General. This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Washington State. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. This Agreement, together with its exhibits and addenda, comprises the entire agreement between Customer and Kevala regarding the subject matter contained herein. This Agreement may only be amended in writing by authorized representatives of each party.
This Addendum to the Platform Terms of Service (“Addendum”) is entered into between Kevala and Customer for the purposes of amending and supplementing the Platform Terms of Service. Terms used in this Addendum will have the meanings assigned to them in the Platform Terms of Service. This Addendum is hereby incorporated by reference into the Agreement. The terms and conditions of this Addendum shall prevail over any directly conflicting provisions in the Agreement with respect to the subject matter hereof. Any capitalized terms not defined in this Addendum shall have the meaning set forth in the Agreement.
Background. In connection with the Services provided by Kevala to Customer under the Agreement, Customer desires to obtain access to and use Kevala’s staffing services as described in this Addendum (the “Staffing Services”) and Kevala desires to provide access to such Staffing Services to Customer.
Staffing Services. In exchange for the fees specified on the Kevala Platform, Kevala shall: (a) recruit, screen, interview, and assign its employees (the "Assigned Employees") to perform the work described in your Order at the location(s) specified in your Order for the term specified in therein; (b) pay Assigned Employee wages and provide other benefits as Kevala deems appropriate; (c) pay, withhold, and transmit payroll taxes, provide unemployment insurance and workers' compensation in an amount no less than required by law, and handle workers' compensation and unemployment claims involving Assigned Employees; (d) ensure Assigned Employees are legally authorized to work in the United States; (d) have sole responsibility for providing and will provide necessary health coverage to Assigned Employees under the Affordable Care Act's (ACA) employer mandate and its implementing regulations. Kevala represents and warrants, to the best of its knowledge, that it will comply with all laws, including the ACA, in doing so.
Customer Duties and Responsibilities. Customer shall: (a) inform Assigned Employees of the Customer’s work to be performed, and Customer shall be responsible for its business operations, products, services, and intellectual property; (b) properly safeguard and control its premises, processes, or systems, and shall not permit Assigned Employees to operate Customer’s vehicles or mobile equipment, or entrust them with unattended premises, property, confidential or trade secret information, or other valuables, without Kevala’s express prior written approval or as required by the job described in the applicable Order; (c) provide Assigned Employees with a safe worksite and safe working conditions in compliance with all Federal, state and local laws, including, without limitation, OSHA, and provide appropriate information, training, and safety equipment to include proper Personal Protective Equipment; (d) not include Assigned Employees in Customer’ benefits plans, policies, or practices, or make any offer or promise relating to Assigned Employee compensation or benefits; (e) not change Assigned Employee job duties without Kevala’s express prior written approval, (f) comply with all applicable national, federal, state and local laws, rules and regulations, orders of any governmental (including, without limitation, any regulatory or quasi-regulatory) agency and contracts, including, without limitation, financial, health, disclosure, import, encryption, securities, privacy, employment, and data protection laws during the term of this Agreement; (g) comply with relevant Joint Commission, federal, state, and local laws, rules and regulations, and professional requirements and medical specialty standards relating to patient care and patient care activities; (h) ensure that Assigned Employees are provided with the lawfully required meal and rest breaks and that Assigned Employees comply with the same; and (i) allow Kevala to perform an annual safety audit of any sites/programs to which it sends Assigned Employees as required by law, by Kevala's insurance carriers, and/or in accordance with best practices.
Payment for Services. Kevala shall invoice Customer for services provided in accordance with this Agreement on a weekly basis at the rates set forth on the Kevala Platform. Payment is due within thirty (30) days of receiving the invoice. Invoices will be accompanied by Assigned Employee timesheets. Customer is responsible for approving Assigned Employee timesheets on a weekly basis; failure to approve or disapprove a timesheet within two (2) business days of Customer’s receipt of the same shall be deemed a final and conclusive acceptance. Customer’s signature, electronic or written, on the timesheets submitted by Assigned Employees certifies that the hours shown are correct, that the work was performed to Customer’s satisfaction, and that Kevala is authorized to bill Customer for those hours. If any portion of any invoice is disputed, Customer shall pay the undisputed portion as the parties attempt to resolve any disputed amounts. Customer acknowledges and agrees that in the event a nonexempt Assigned Employee works more than forty (40) hours in any workweek for Customer or more than eight (8) hours in a shift, that Assigned Employee is entitled to premium payment for overtime compensation as required under applicable federal, state, or local law. Kevala acknowledges and agrees that it is solely responsible for ensuring all hours worked by Assigned Employees are paid at the legally required rate. Customer agrees to pay for any overtime hours worked at the rate specified on the Kevala Platform.
Non-Discrimination. Customer and Kevala affirm and agree that they are equal employment opportunity employers and are in full compliance with any and all applicable anti-discrimination laws, rules, and regulations. Customer and Kevala agree not to harass, discriminate against, or retaliate against any employee of the other because of his or her race, national origin, age, sex, religion, disability, marital status, or other category protected by law; nor shall either party cause or request the other party to engage in such discrimination, harassment, or retaliation. In the event of any complaint of unlawful discrimination, harassment, or retaliation by any Assigned Employee, Customer and Kevala agree to cooperate in the prompt investigation and resolution of such complaint.
Compliance. Customer and Kevala affirm and agree that for purposes of all statutory and regulatory requirements for employee leaves of absence, including the Family and Medical Leave Act and any similar state or local law, Customer and Kevala shall cooperate in compliance with any such requirements. As Customer controls the facilities in which Assigned Employees work, Customer agrees that it is primarily responsible for maintaining a safe worksite in compliance with the Occupational Safety and Health Act and comparable state laws and regulations thereunder, to the extent those laws apply to Assigned Employees assigned to Customer's worksite, except as may be otherwise agreed in writing signed by the parties hereto. Upon reasonable written notice to Kevala, Customer may inspect Kevala's records to verify Kevala's compliance with this Agreement. Customer and Kevala agree that Kevala has sole responsibility for providing, and will provide, the necessary health coverage to Assigned Employees under the Affordable Care Act's (ACA) employer mandate and its implementing regulations. Kevala represents and warrants that it will comply with all laws, including the ACA, in doing so. Customer shall indemnify, defend, and hold harmless Kevala and its officers, directors, employees and agents from and against any and all losses, claims, damages, liabilities, obligations, penalties, judgments, awards, costs, expenses and disbursements, including, without limitation, the costs, expenses (including, without limitation, all attorney’s fees and costs), and disbursements, as and when incurred, of investigating, preparing or defending any action, suit, proceeding or investigation asserted, caused by, relating to, based upon, arising out of, or in connection with (a) any claims for property damage, injury, or death, including theft, in any way alleged to arise from the performance of any work by any Assigned Employee; (b) Kevala’s use of or reliance on any inaccurate or incomplete written information provided by Customer; or (c) any claims, actions or proceedings by any Assigned Employee or Candidate arising from or relating to allegations that an agent, representative, director, consultant, shareholder, member, partner, officer, customer, supervisor or employee of Customer engaged in conduct in violation of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act or any other Federal or state statute or regulation
Cooperation. Customer and Kevala agree to cooperate fully and to provide assistance to one another in the investigation and resolution of any complaints, claims, actions, or proceedings that may be brought by or involve any of the Assigned Employees.