Terms and Conditions
- “Customer Data” refers to any data, information, content, records, and files that Customer loads, transmits to or enters into the Platform or otherwise provides to Knit, and any data, information, content, records and files that the Platform obtains from Customer’s servers or systems or from third parties on Customer’s behalf, including any and all intellectual property rights in any of the foregoing.
- “Modifications” refers to modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, adaptations, and results from processing (including analyses, reports, databases, datasets, recommendations, and visual representations) in any form or medium, and “Modify” has a corresponding meaning.
- “Personal Information” refers to information about an identifiable individual.
- “Platform” refers to: (i) the software-as-a-service platform offered by Knit to provide payroll, human-resources and benefits management services; (ii) the Website; and (iii) all other software, hardware, and systems used by Knit to host and make the Platform available for Customer’s use and access.
- “Website” refers to any websites used by Knit to make the Platform available, which includes, but not limited to www.knitapps.com.
- Platform Availability
- Right to customer data
- Reservation of Rights
- User accounts; Customer Restrictions
- User accounts. Upon customer’s request, Knit may issue one administrator account to customer which enables customer to further issue user accounts to employee or contractor that customer wishes to allow access or use of platform. Users may only use the platform through their user account. Customer is responsible for compliance by users with this agreement and any other activity under the user accounts. Customers will not allow users to share user accounts with other people. Customer will notify Knit of any suspicious unauthorized activity of the platform or services. Knit reserves the right to suspend, deactivate, or replace administrator account or user account that may be used for unauthorized purpose.
Customer restrictions. Customer will not and will not permit any other person (including other users) to:
- use the platform other than permitted by this agreement
- use the platform to upload, collect, transmit, store, use, disclose or ask Knit to obtain from third parties or perform any of the above with respect to any customer information: (a) that customer or user does not have the lawful right to upload, collect, transmit, store, use, disclose, process copy, distribute and display; (b) in a manner that violates or misappropriates the intellectual property or other rights of any third party; (c) that is tortious, defamatory, obscene, or offensive that violates any applicable laws or would give rise to civil or criminal liability.
- use any data mining, robots, or similar data gathering methods; or copy, modify, reverse engineer, disassemble, reverse disassemble or decompile the platform to find any source code; or
- use the platform to build a similar or competitive product or service.
- Confidential Information
- Definitions. For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) shall be the “Recipient” and the Party disclosing such information shall be the “Discloser” and “Confidential & Proprietary Information” means all information disclosed by Discloser to Recipient during the Term and marked as “confidential” or “proprietary.” Customer hereby acknowledges that the Service will be considered Confidential and Proprietary Information belonging exclusively to Knit (or its designated third party supplier), and Knit hereby acknowledges that Customer Data will be considered Confidential and Proprietary Information belonging exclusively to Customer, in each case regardless of whether or not marked as “confidential” or “proprietary.” Discloser’s Confidential & Proprietary Information does not include: (i) information already known or independently developed by Recipient without use of or reference to any Discloser’s Confidential & Proprietary Information; (ii) information in the public domain through no wrongful act of Recipient, or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Covenant. Recipient hereby agrees that during the Term and at all times thereafter it shall not (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, as permitted by this EULA (including Section 5(b)), or to such other recipients as the Discloser may approve in writing, including Representatives; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this EULA; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient shall use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event shall less than reasonable care. Upon the earlier of Discloser’s written request or termination or expiration of this EULA, and regardless of whether a dispute may exist, Recipient shall return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Knit may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable legal, regulatory, and/or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this EULA or is required by law or by the order of a court or similar judicial or administrative body, provided that prior to disclosing any Confidential & Proprietary Information due to a legal requirement, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.
- Injunctive Relief Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief shall be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.
- Information Regarding Benefits or Insurance Service Provider
- The Platform may provide Customer with information or referrals with respect to engaging the services of third parties for the provision of benefits or insurance services (such third parties, the “Benefits or Insurance Service Provider”). Customer may separately enter into an agreement with a Benefits or Insurance Service Provider on such terms and conditions as may be agreed between Customer and that Benefits or Insurance Service Provider.
- If Customer engages the services of a Benefits or Insurance Service Provider, Customer acknowledges that Customer is engaging directly with the Benefits or Insurance Service Provider it selects and not with Knit, and that Knit is not a party to and will be in no way responsible for the performance of either Customer or the Benefits or Insurance Service Provider.
- Knit does not make any representations or warranties of any kind in respect of any Benefits or Insurance Service Provider and Customer acknowledges that Knit is not an agent or representative of Customer or any Benefits or Insurance Service Provider. Customer is responsible for managing, inspecting, accepting and paying for services and deliverables provided under any agreements with Benefits or Insurance Service Providers.
- Warranty Disclaimer
- Customer Warranty. Customer represents and warrants to, and covenants with Knit that the Customer Data will only contain Personal Information in respect of which Customer has obtained all applicable third party consents, authority and permissions, and has made all applicable third party disclosures (including to each User), in each case as required by applicable laws, regarding all collection, storage, access, use, disclosure and transmission of Personal Information.
- Benefits or Insurance Service Provider Disclaimer. Knit makes no guarantees about the availability of specific benefits or insurance service providers or the services they provide. Without limiting the foregoing, Knit makes no guarantees about any benefits or insurance service provider’s ability to fulfill its obligations with respect to its agreement with customer, including, without limitation, the suitability of any benefits or insurance service provider to perform any services in a workman-like or professional manner.
Benefits or insurance service providers are independent contractors and not contractors, agents or employees of Knit. Knit is not liable for the acts, errors, omissions, representations, warranties, conditions, breaches or negligence of any benefits or insurance service provider or for any personal injuries, death, property damage, or other damages or expenses resulting therefrom and takes no responsibility whatsoever related to any agreements entered into between customer and any benefits or insurance service provider.
- General disclaimer.Except as specifically provided in this agreement, the platform (or any part thereof), and any other products and services provided by Knit to customer are provided “as is”, “as available”.
To the extent permitted by applicable law, Knit hereby disclaims all express, implied, collateral or statutory warranties, representations and conditions, whether written or oral, including any implied warranties of merchantability, merchantable quality, compatibility, title, non-infringement, security, reliability, completeness, quiet enjoyment, accuracy, quality, integration or fitness for a particular purpose or use, or any warranties or conditions arising out of course of dealing or usage of trade. Knit does not warrant that the platform (or any part thereof) will operate without interruption or be error free, or that all errors can or will be corrected. Without limiting the generality of any of the foregoing, Knit expressly disclaims any representation, condition or warranty that any data or information provided to customer in connection with customer’s use of the platform (or any part thereof) is accurate, or can or should be relied upon by customer for any purpose whatsoever.
- Indemnity. Customer will defend, indemnify and hold harmless Knit, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Users) liability (including damages, recoveries, deficiencies, interest, penalties and reasonable legal fees), directly or indirectly arising from or in connection with, or relating to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) use of the Platform (or any part thereof) by Customer or any User in combination with any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence on the part of Customer or any User; or (v) any actual or alleged infringement, violation or misappropriation of the rights of any person (including intellectual property or privacy rights) as a result of Customer’s or any User’s use of the Platform (or any part thereof) contrary to the terms of this Agreement. Customer will fully cooperate with Knit in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Knit.
- Limitations of Liabilities
- Amount. In no event will the total aggregate liability of Knit in connection with or under this agreement exceed $100. For greater certainty, the existence of one or more claims under this agreement will not increase this maximum liability amount. In no event will Knit’s third party suppliers have any liability arising out of or in any way connected to this agreement.
- Type. To the maximum extent permitted under applicable law, in no event will Knit be liable to customer or any user for any: (i) special, exemplary, punitive, indirect, incidental or consequential damages, (ii) lost savings, profit, data, use, or goodwill; (iii) business interruption; (iv) any costs for the procurement of substitute products or services; (v) personal injury or death; or (vi) personal or property damage arising out of or in any way connected to this agreement, regardless of cause of action or the theory of liability, whether in contract, tort (including negligence, gross negligence, fundamental breach, breach of a fundamental term) or otherwise and even if notified in advance of the possibilities of such damages.
- Term and Termination
- Term. This Agreement will commence on the Effective Date and continue to be in effect until terminated in accordance with its terms (the “Term”).
- Termination For Convenience. Either party may terminate this Agreement at any time by providing advance written notice of not less than 14 days to the other Party.
- Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within five days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion, in each case unless the material breach is not capable of being cured.
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Right to customer data), Section 4 (Reservation of Rights), Section 7 (Confidential Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 10 (Limitation of Liabilities), Section 11(d) (Survival), and Section 12 (General Provisions).
- General Provisions
- Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other Party’s server. Notices must be in writing and sent: (i) if to Knit, to the following address:
- 56 Temperance St., 7th Floor, Toronto, ON M5H3V5
- and (ii) if to Customer, to the current postal or email address that Knit has on file with respect to Customer. Knit may change its contact information by posting the new contact information on the Knit Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Knit through the Knit Platform current at all times during the Term.
- Assignment Customer will not assign this Agreement to any third party without Knit’s prior written consent. Knit may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon permitted assignees. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
- Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Construction. Except as otherwise provided in this Agreement, the Parties rights and remedies under this Agreement are cumulative. The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Knit in this Agreement means the right of Knit to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond Knit’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Knit employees), Internet service provider failures or delays, or the unavailability or Modification by third parties of third party websites.
- Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Customer’s relationship to Knit is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Knit.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.
- Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. Notwithstanding the preceding sentence, Knit may unilaterally amend this agreement, in whole or in part (each, an “amendment”), by: (i) giving customer prior notice of such amendment; or (ii) posting notice of such amendment on the website. Unless otherwise indicated by Knit, any such amendment will become effective as of the date the notice of such amendment is provided to customer or is posted on the website (whichever is the earlier).
- English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
This Knitapps.com software-as-a-service agreement (the “Agreement”) is an agreement between the person visiting, browsing, accessing or otherwise using (the term “use” will refer to any of the foregoing and the term “using” will have a corresponding meaning) the Platform (“Customer”) and Knit Technologies Inc. ("Knit", Knit and Customer, the “Parties” and each, a “Party”), and is entered into the earlier of: (A) the date Customer first uses any part of the Platform; and (B) the date Customer agrees to be bound by this Agreement (the “Effective Date”).
By using any element of the platform (including the website), customer acknowledges that customer has read, accepts and agrees to be bound by and comply with the terms and conditions set out in this agreement, as amended from time to time in accordance with section 13(j). If customer does not accept and agree to be bound by this agreement, customer will immediately cease any further use of the platform, including use of any part thereof. Customer represents and warrants to Knit that customer has the capacity to enter into this legally binding agreement. If customer is using the platform on behalf of another person, customer hereby represents and warrants to Knit that customer has the authority to bind such person to this agreement.
Accessing the platform. Subject to the customer’s compliance to the terms and conditions of this agreement, Knit will make the service platform available to customers and users.
Limitation, suspension or termination of access. Platform upgrades and scheduled downtime. Knit may without notice (i) suspend, terminate or limit a user’s access to the platform or any component of it; or (ii) modify the platform. Knit will use reasonable efforts to provide advance notice of such circumstances.
Subject to the term and conditions of this Agreement, the customer grants Knit non-exclusive, royalty free and worldwide right and license to reproduce, perform, modify, develop, access, collect, store and use all customer data, including any other information in connection with this agreement.
Knit reserves all rights, title and interest in, and the customer will not acquire any right, title or interest in: (i) the platform (or any part of) and any material provided under this agreement; and (ii) any intellectual property rights in any of the foregoing. Clauses (i) and (ii) are collectively “Knit Property”. All rights, title and interest will remain with Knit (or any of Knit’s third party agents). Furthermore, Knit Property is licensed, not “sold” to customers.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
This Agreement was last modified on Aug 20, 2015.