Kayako On Demand Terms of Service

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Kayako Terms of Service

THIS "TERMS OF SERVICE" (THE "TOS") IS A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL OR LEGAL ENTITY OR ASSOCIATION INTENDING TO USE THE SERVICE ("YOU" OR "CUSTOMER") AND KAYAKO. BY REGISTERING FOR THE SERVICES OR BY USING THE SERVICES, YOU REPRESENT, WARRANT, AND AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND TO THE TERMS OF THE TOS. IF YOU DO NOT AGREE TO BE BOUND BY THE TOS, OR YOU DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THE TOS, YOU MAY NOT USE THE SERVICES.

As described below, we may modify the TOS at any time and from time to time. You can find the most current version of the TOS at http://www.kayako.com/tos/.

Definitions

"Active Staff User Account" means a staff user account that is active in the context of Kayako's software, meaning that the Staff User Account is fully functional and can be used to authenticate to the Services.

"Data" means the data stored in Your helpdesk using the Services.

"Kayako", "Us" and "We" means Kayako Helpdesk Pvt. Ltd., its employees, representatives and contractors.

"Service" and "Services" means the Kayako On Demand hosted helpdesk service, together with any associated tools, products, services, media, downloaded software, and other content delivered to You through the Site or otherwise by Kayako.

"Site" means kayako.com.

"Solution" means the solution (Kayako Fusion, Kayako Engage, or Kayako Case) You choose to have delivered to You as part of the Services.

"Staff User Account" means a staff user account in the context of Kayako's software.

"Third Party Software" includes any third-party software that may be included with the Services.

1. Grant of License

1.1 License. Subject to the TOS, Kayako grants You the revocable, non-exclusive, non-transferable, and non-sublicensable license to use the Services through Your Active Staff User Accounts.

1.2 Staff User Accounts. You shall ensure that the number of Your Active Staff User Accounts is equal to or less than the number of Staff User Accounts for which You have subscribed. You are responsible for ensuring that access to a Staff User Account is not shared. Only one individual may authenticate to one Staff User Account. If You are a legal entity or association, all persons using Your Staff User Accounts must be either Your employees or Your contractors who have agreed to be bound by the TOS.  Hardware or software you use to pool connections, reroute information, or reduce the number of users that directly access or use the Software (sometimes referred to as "multiplexing" or "pooling"), does not reduce the number of licenses or Active Staff User Accounts you need.

1.3 Subscription Basis. You acknowledge and agree that, as described further herein, Your license to use the Services is provided on a term, paid-subscription basis and therefore will terminate upon the end of Your paid subscription term (unless terminated earlier as provided for herein) if You do not timely renew such subscription on the then-current terms and conditions. 

1.4 Third Party Software. The Services may contain Third Party Software that requires notices and/or additional terms and conditions.   Such required Third Party Software notices and/or additional terms and conditions may be requested from Kayako and are made a part of and incorporated by reference into the TOS.  By accepting the TOS, You are also accepting the additional terms and conditions, if any, set forth therein.

2. Conditions and Limitations

2.1 No Reselling, Time-Sharing, or Sub-Licensing. You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than as expressly permitted by the TOS.

2.2 No Unlawful Use or Objectionable Content. You shall not use the Services in any unlawful manner or in any manner that interferes with or disrupts the integrity or performance of the Services and its components or infringes on the rights of another party. You shall not modify, adapt or hack any protected (encrypted or compiled) parts of the Software, or otherwise attempt to gain unauthorized access to those parts or its related systems or networks. You undertake not to promote any material that is unlawful, threatening, abusive, malicious, defamatory, false, materially inaccurate, or otherwise objectionable. You will not reproduce, publish, or distribute content in connection with the Service that infringes any third party's trademark, copyright, patent, trade secret, publicity, privacy, or other personal or proprietary right. Kayako offers no assurance that Your use of the Service under the terms of the TOS will not violate any law or regulation applicable to You.

2.3 Responsibility for Use. You assume all responsibility for the use of the Services, including but not limited to content and media that is created, uploaded to, downloaded from, transmitted and edited using the Service. You are responsible for any accesses made to the Service.

2.4 Transmission of Data. You acknowledge that technical processing and transmission of the Services, including Your content, may be transferred unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Kayako’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. You shall not use the Services as a proxy between a user and other network data.

2.5 Attribution. With respect to any use of the Service, You shall keep the attribution and hyperlink to Kayako and its website intact unless a license (at a cost) is obtained from Kayako to do so.

2.6 Backups. Kayako takes regular backups of Your Data. No guarantees of any kind will be made as to the integrity or completeness of these backups. You agree to maintain all appropriate backup of files and data stored on Kayako servers as You see fit.

2.7 Data Recovery. If loss of data occurs due to an error on Kayako's part, Kayako will attempt to recover the data at no charge. If loss of data occurs due to an error on Your part Kayako may, at its discretion, offer a data recovery service for a fee of $999.00 USD.

2.8 Fair Usage Policy. Kayako take all reasonable efforts to provision sufficient resources to provide good quality of Service, relative to the number of Staff User Accounts purchased. If Your use of the Services affects the quality of Services that we are able to provide to other customers, Kayako may suspend Services to You. Depending on the specific issue (for example, whether sustained or a one-time occurrence), Kayako may require You to upgrade to a higher capacity account. Kayako undertakes to discuss such problems with You in good time, should they arise.

2.9 Unsolicited Email. You may not use the Services to send unsolicited email ("spam") to anyone, including mailing lists which You have purchased. If reports of unsolicited email are received, Kayako may suspend Your Services without notice.

2.10 Securing Your Authentication Details. You will ensure that all passwords and login credentials remain secure at all times for You and each of Your Staff User Accounts. If in the case that You suspect a security violation You also undertake to notify Kayako immediately.

2.11 Handling Software. You shall not (a) reverse engineer, decompile, disassemble, or decrypt any portion of compiled and/or source code, in whole or in part, or otherwise attempt to discover the source code to the software used in the Service, (b) use any Third Party Software independently of the Services or (c) make any attempt to circumvent parts of the Services designed to enforce the maximum number of Staff User Accounts for which You have paid. You obtain no rights to the Service except for the limited rights to use the Service expressly granted by the TOS.

2.12 Limited License. You acknowledge and agree that (i) the Service is the property of Kayako and is licensed and not sold to You under the TOS and (ii) the Service uses, embodies, and contains confidential and proprietary information and technology of Kayako and/or its licensors and embodies trade secrets and intellectual property of Kayako and/or its licensors protected under United States copyright and other laws, and by international treaty provisions (collectively referred to as “Kayako’s Intellectual Property Rights”). Your rights in the Service are strictly limited to those license rights expressly granted under Section 1.1 above, and Kayako retains all rights not expressly granted herein. Without limiting the foregoing, Kayako and/or its licensors retain all right, title, and interest in and to Kayako’s Intellectual Property Rights, including but not limited to: (i) all software code (source and object), functionality, technology, system or network architecture and user interfaces and all modifications thereto and (ii) all trade secrets, patents, copyrights and other intellectual property rights with respect to the Service. You further acknowledge that there are no implied licenses granted under the TOS.

2.13 Disrepute. You shall not commit any act likely to result in the disrepute or harming of interests of Kayako's name or the name of its third party suppliers, whether through explicit act or omission.

3. Liabilities, warranties and indemnification

3.1 Disclaimer of Warranties. No Warranties. THE SERVICE, ACCESS TO THE SERVICE, THE INFORMATION CONTAINED ON THE SERVICE, AND THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. KAYAKO MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KAYAKO OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

3.2 Carrier Lines. YOU ACKNOWLEDGE THAT ACCESS TO THE SERVICE WILL BE PROVIDED OVER VARIOUS FACILITIES AND COMMUNICATIONS LINES, AND INFORMATION WILL BE TRANSMITTED OVER LOCAL EXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES, AND OTHER DEVICES (COLLECTIVELY, “CARRIER LINES”) OWNED, MAINTAINED, AND SERVICED BY THIRD-PARTY CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS, ALL OF WHICH ARE BEYOND KAYAKO’S CONTROL. KAYAKO ASSUMES NO LIABILITY FOR OR RELATING TO THE INTEGRITY, PRIVACY, SECURITY, CONFIDENTIALITY, OR USE OF ANY INFORMATION WHILE IT IS TRANSMITTED ON THE CARRIER LINES, OR ANY DELAY, FAILURE, INTERRUPTION, INTERCEPTION, LOSS, TRANSMISSION, OR CORRUPTION OF ANY DATA OR OTHER INFORMATION ATTRIBUTABLE TO TRANSMISSION ON THE CARRIER LINES. USE OF THE CARRIER LINES IS SOLELY AT YOUR RISK AND IS SUBJECT TO ALL APPLICABLE LOCAL, STATE, NATIONAL, AND INTERNATIONAL LAWS.

3.3 Unauthorized Access; Lost or Corrupt Data. KAYAKO IS NOT RESPONSIBLE FOR UNAUTHORIZED ACCESS TO ANY DATA, FACILITIES, OR EQUIPMENT BY ANYONE USING THE SERVICE OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, CORRUPTION, LOSS, OR DESTRUCTION OF ANY DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH THE SERVICE, WHETHER BY ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER MEANS. YOU ARE SOLELY RESPONSIBLE FOR VALIDATING THE ACCURACY OF ALL OUTPUT AND REPORTS. YOU HEREBY WAIVE ANY DAMAGES OCCASIONED BY LOST OR CORRUPT DATA, INCORRECT REPORTS, OR INCORRECT DATA FILES RESULTING FROM PROGRAMMING ERROR, OPERATOR ERROR, EQUIPMENT OR SOFTWARE MALFUNCTION, SECURITY VIOLATIONS, OR THE USE OF THIRD-PARTY SOFTWARE. KAYAKO IS NOT RESPONSIBLE FOR THE CONTENT OF ANY INFORMATION TRANSMITTED OR RECEIVED THROUGH KAYAKO’S PROVISION OF THE SERVICE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. KAYAKO SHALL NOT BE HELD RESPONSIBLE FOR DATA HOSTED ON ITS SERVERS AND YOU ARE SOLELY RESPONSIBILITY FOR MAINTAINING LOCAL COPIES OF YOUR DATA AND MAINTAINING PROPER AND SUFFICIENT INSURANCE IF COVERAGE IS REQUIRED WITH RESPECT TO DATA LOSS.

3.4 Third-Party Sites and Service Providers. THE SERVICE MAY CONTAIN HYPERLINKS (INCLUDING HYPERLINKED ADVERTISEMENTS) TO INTERNET WEB SITES OPERATED BY THIRD PARTIES, OR TO MATERIALS OR INFORMATION MADE AVAILABLE BY THIRD PARTIES. SUCH THIRD PARTIES MAY OFFER GOODS OR SERVICES FOR SALE TO YOU. SUCH LINKS DO NOT CONSTITUTE OR IMPLY KAYAKO’S ENDORSEMENT OF SUCH THIRD PARTIES, OR OF THE CONTENT OF THEIR SITES, THE QUALITY OR EFFICACY OF THEIR GOODS OR SERVICES, OR THEIR INFORMATION PRIVACY OR SECURITY PRACTICES, AND KAYAKO HAS NO RESPONSIBILITY FOR INFORMATION, GOODS, OR SERVICES OFFERED OR PROVIDED BY SUCH THIRD PARTIES, OR FOR THE MANNER IN WHICH THEY CONDUCT THEIR OPERATIONS. YOUR USE OF THIRD-PARTY SITES AND THE MATERIALS, GOODS, AND SERVICES OFFERED BY THEM IS ENTIRELY AT YOUR OWN RISK, AND IS SUBJECT TO THE TERMS OF USE OF THE THIRD PARTIES OPERATING OR PROVIDING THEM. YOU SHOULD ASSUME THAT ANY INTERNET PAGE OR OTHER MATERIAL THAT DOES NOT BEAR THE KAYAKO LOGO IS PROVIDED BY A THIRD PARTY.

3.5 Warranties Required By Applicable Law. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE YOU REGISTERED FOR THE SERVICES.

3.6 Limitation of Liability. IN NO EVENT SHALL KAYAKO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE AND BASED ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF KAYAKO OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. KAYAKO'S TOTAL LIABILITY TO YOU AND THIRD PARTIES FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE DAMAGE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THE TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THE TOS AND HOW TO PRICE THE SERVICES. SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THE SERVICE AND THE TOS.

3.7 Indemnification. You agree to indemnify, defend, and hold harmless Kayako and other users of Kayako services, and Kayako’s and their affiliates, officers, directors, and agents, from and against any claim, cost or liability, including reasonable attorneys’ fees, arising out of or relating to: (a) Your use of the Service; (b) any content You create, transmit, or display while using the Service; (c) any breach by You of any representations, warranties, or agreements contained in the TOS; (d) any unlicensed use of the Service using Your Staff User Accounts; and (e) Your negligent or willful misconduct.

3.8 Notification of Claim. In no event will a claim by brought by You unless the licensee has notified Kayako of the claim within one year of it arising.

3.9 Infringement. Subject to the remainder of this Section 3.9 and to the limitations set forth in Section 3.6, Kayako will indemnify and hold You harmless against a claim to the extent based on an allegation that Your use of the Service (in the form provided by Kayako) in compliance with this Agreement infringes a United States or European Union patent or registered copyright (“Claim”), and will pay those damages and costs finally awarded against You by a court of competent jurisdiction, or agreed to in writing by Kayako as settlement, as a result of such Claim, provided that the licensee has notified Kayako of the Claim within sixty (60) days of it arising. Kayako will have no liability for any damages or costs to the extent that a Claim is based upon: (i) use of Service in combination with any non-Kayako product, software or equipment; (ii) use of Service in a manner or for an application other than for which it was designed or intended to be used, regardless of whether Kayako was aware of or had been advised of such use; (iii) modifications to Service by any person or entity other than Kayako; (iv) any breach by You of any representations, warranties, or agreements contained in the EULA; (v) any unlicensed use of the Service using Your Staff User Accounts; or (v) Your negligent or wilful misconduct. If the Service becomes, or in the opinion of Kayako may become, the subject of a Claim, Kayako may, at its option and in its discretion: (i) procure for You the right to use the Service free of any liability; (ii) replace or modify the Service to make it non-infringing; or (iii) terminate Your right to continue using such Software and refund, on a prorated basis, any license fees related to the Software paid by You.

4. Trademarks and publicity

4.1 Use of Names and Trademarks. While You remain licensed to use the Services, You may use Kayako's name or logos in order to identify Yourself as a customer. You shall not otherwise use Kayako's name or trademarks, unless written permission is obtained from Kayako or otherwise set out in the TOS.

4.2 Disrepute. You shall not commit any act where the result of which is the likely disrepute or harming of interests of Kayako's name or the name of its third party vendors, whether through explicit act or omission.

4.3 Promotional Materials and Publicity. You authorize Kayako to use Your name and trademarks in Kayako's promotional materials and for publicity purposes. You can opt-out at any time by writing to: [email protected]

5. Confidentiality

5.1 Access to and Disclosure of Your Data. You acknowledge and agree that Kayako may access, use, and store Your Data for the purpose of (i) providing the Service and (ii) responding to Your requests for technical support and/or providing other services that we have agreed, or may in the future agree, to provide. You also agree that Kayako may collect anonymized usage data from and/or relating to Your Data and Your use of the System (“Anonymized Usage Data”). Anonymized Usage Data will not include identifying information about Your customers, such as Your customer contact information, or copies of communications between You and Your customers. Kayako shall maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of any of Your Data in Kayako's possession. Kayako will not disclose any of Your Data in Kayako's possession to a third party unless compelled by law or court order or if You consent in writing to the disclosure.

5.2 Anonymized Usage Data. In consideration of Kayako’s provision of a license to access and use the Service, You hereby transfer and assign to Kayako all right, title, and interest in and to all Anonymized Usage Data that Kayako makes from Your data pursuant to Section 5.1. You agree that Kayako may use, disclose, market, license, and sell such Anonymized Usage Data for any purpose without restriction, and that you have no interest in such information, or in the proceeds of any sale, license, or other commercialization thereof.

5.3 Privacy Policy. The privacy policy is available at http://www.kayako.com/privacy/. By agreeing to the TOS, You accept the terms of Kayako's privacy policy.

6. Payments, Sales, and Refunds

6.1 Payment of Fees. You must pay all fees by the due dates.

6.2 Upgrading, Downgrading, or Switching Solution. The amount You pay per billing cycle is dependent on the Solution selected and the number of Staff User Accounts selected. If You switch to a Solution which costs more or increase the number of Staff User Accounts in the middle of a billing cycle, Kayako will invoice You at that time for the marginally increased amount You owe for that billing cycle. If You switch to a Solution which costs less or decrease the number of Staff User Accounts in the middle of a billing cycle, Kayako will not be required to refund the amount by which You will have overpaid for that billing cycle, but instead will credit that amount towards the subsequent billing cycle(s).  To change your Solution or the number of Staff User Accounts, you must, at Kayako's sole discretion, enter into a new license agreement for the Software on the then-current terms.

6.3 Price Changes. Kayako reserves the right to change prices at any time.

6.4 Credit Card Billing. If You choose to pay by credit or debit card You authorize Kayako to debit Your account renewal fees from Your card. Kayako uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use Your billing information except to process Your credit card information for Kayako. Kayako may use Your information in order to perform fraud screening.

6.5 Refunds. Kayako has no obligation to issue refunds. Kayako offer a 30 day evaluation account that should be used to evaluate and test the Services before purchasing. Any refunds will be made entirely at Kayako's discretion.

6.6 Right to Refuse Access. Kayako reserves the right to refuse anyone access to the Services for any or no reason.

6.7 Taxes.

Unless otherwise stated, Kayako's charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively "Taxes"). You are responsible for paying Taxes except those assessable against Kayako based on its income. Kayako will invoice You for such Taxes if Kayako believes there is a legal obligation to do so and You agree to pay such Taxes if so invoiced.

7. Termination and Modification

7.1 Termination by You. You may terminate Your account at any time. Should You wish to terminate Your account with Kayako, You are solely responsible for ensuring that You properly terminate Your account and secure confirmation of account termination from Kayako. If You terminate Your account before the end of Your current paid-up subscription period, Your termination will nevertheless take effect immediately and You will receive no refund. You can terminate Your account by writing to Kayako at: [email protected] Kayako will process Your account termination within 48 hours of Your notice. You may be charged in this period.

7.2 Termination by Kayako. Kayako reserves the right to (a) modify or discontinue, temporarily or permanently, the Services (or any part thereof) and (b) refuse any and all current and future use of the Services, suspend or terminate Your account (any part thereof) or use of the Services and remove and discard any of Your content in the Services, for any reason, including without limitation if Kayako believes that You have violated the TOS. Kayako will use reasonable efforts to contact You directly via email to warn You prior to suspension or termination of Your account. Kayako shall not be liable to You or any third party for any modification, suspension or discontinuation of the Service. Kayako will not refund any amounts to You if Kayako terminates Your access to the Services due to Your violation of the TOS.

7.3 Effect of Termination. The termination of Your account with Kayako for any reason results in the immediate termination of Your license to use the Services and upon such termination (i) You shall immediately cease all use of the Services, (ii) You will lose access to all of Your content and Kayako will delete it in the normal course of business operations, and (iii) You shall destroy all copies, full or partial, of any components of the Services that may have been downloaded by you or otherwise transmitted to you electronically or otherwise in connection with the Services. Your information cannot be recovered once Your account is terminated.

7.4 Changes and Amendments. Kayako may change the TOS at any time and from time to time without prior notice. Ultimately, it is the Your responsibility to obtain and revisit the TOS. Changes to the TOS will be effective immediately, and Your continued used of the Service will constitute acceptance of those changes. You agree that Kayako shall not be liable to You or to any third party for any modification of the Service and/or the TOS.

7.5 Recovery of fees and costs. Should You continue to use the Services after notice of termination has been received, You will be liable to pay all costs, including reasonable attorneys fees, to enforce Kayako's revocation of the Service, as well as any damages suffered by Kayako in the process.

7.6 Survival. Articles 3, 4, 5, 6, 7, and 8 of the TOS will survive termination of the TOS or Your account.

8. Interpretation

8.1 Assignment. You may not assign Your account with Kayako or Your rights under the TOS without Kayako’s prior written consent, except in the case of a sale of all or substantially all of Your assets. Kayako may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation.

8.2 Headings. Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement.

8.3 Enforcement. The failure of Kayako to exercise or enforce any right or provision of the TOS shall not be a waiver of that right. No provision in the TOS shall be deemed waived and no breach excused, unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of a breach by the other, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach.

8.4 Export Controls. You agree to comply with all applicable export and reexport control laws and regulations, including without limitation the Export Administration Regulations maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control. If You are in a country outside of the United States, You agree to additionally comply with any local rules regarding online conduct and acceptable content, including without limitation laws regulating the export and reexport of data to and from the United States or such other country.

8.5 Choice of Law. The interpretation of the TOS and the resolution of any disputes arising under or in connection with the TOS shall be governed by the laws of the State of Idaho, USA. The United Nations Convention on Contracts for the Sale of Goods does not apply.

8.6 Dispute Resolution. In the event of a claim or dispute between You and Kayako arising under or in connection with the TOS or the Software, the parties shall first attempt to settle the claim or dispute by direct discussions. If discussions are not successful, the parties shall arbitrate pursuant to the Commercial Arbitration Rules administered by the American Arbitration Association, with a final judgment to be entered upon the arbitration award. The venue for discussions and arbitration shall be Boise, Idaho.

8.7 Severability. Any provision of the TOS that shall prove to be invalid, void, or illegal, shall in no way affect, impair, or invalidate any other provision of the TOS, and such other provisions shall remain in full force and effect.

8.8 Notices. You agree that Kayako may provide You with notices, including without limitation those regarding changes to the TOS, by e-mail, regular mail, or messages or postings through the Services.

8.9 Complete Understanding. The TOS, as may be amended from time to time as provided for in Section 7.4, constitute the entire agreement between You and Kayako and govern Your use of the Services, superseding any prior agreements between You and Kayako for the use of the Services. You also may be subject to additional terms and conditions that may apply when You use or purchase certain other Kayako services, affiliate services, third-party content, or third-party software.

8.10. No Third-Party Beneficiaries. Nothing express or implied in the TOS is intended to confer, nor shall confer, upon any person or entity other than the parties and their respective successors or assigns any rights, remedies, obligations, or liabilities whatsoever.