Last Modified: February 11, 2020
"Authorized User(s)" means a person a Corporate Customer identifies as a person allowed to use Authorized Devices designated in the Corporate Account.
"Authorized Device(s)" means the Apple electronic devices the Corporate Customer lists in its Corporate Account.
"Confidential Information" - See Section 9.
"Corporate Account" means the portal of the Corporate Customer in which the Corporate Customer shall designate its Authorized Devices and through which the Corporate Customer Representatives shall administer the Service for all Authorized Devices and Authorized Users.
"Corporate Customer(s)" means the business entity and its representative subscribing to the Service in which the business entity shall designate Authorized Devices and manage the account.
"Corporate Customer Representative(s)" means the person or persons authorized by the Corporate Customer to administer its account with us and communicate with us on behalf of the Corporate Customer.
"Disclosing Party" - See Section 9.
"Kandji", "us", “our”, and "we" means Kandji, Inc., the provider of the Service.
"Intellectual Property" means all (a) patents, patent applications; (b) registered and unregistered trademarks, service marks, trade names, domain names, and all of the associated goodwill; (c) registered and unregistered copyrights and all other literary and author’s rights or moral rights; and (d) trade secrets, know-how, show-how, concepts, ideas, methods, processes, designs, discoveries, improvements, and inventions, whether patentable or unpatentable.
"Order Form(s)" means the Kandji form provided to a Corporate Customer to subscribe to the Service.
"Receiving Party" - See Section 9.
"Service" means the mobile device management service and all its components made available by Kandji.
“Subscription” means the right to access and use the Service upon payment of a Subscription Fee and acceptance of this Agreement.
"Subscription Fee(s)" means the amount a Corporate Customer pays for the right to access and use the Service for a Subscription Term.
"Subscription Term(s)" means the initial period of time You select to use the Service and each subsequent renewal period of time, if any.
"You" and "Your" means the entity or person using the Service, also known as the Corporate Customer and Authorized Users, together and individually as appropriate.
2. Free Trial
We may make one or more aspects of the Service available to a party for a trial period at no charge at our sole discretion. The right to access and use the Service will be terminated at the end of a free trial unless the party becomes a fully paid Corporate Customer. We reserve the right, in our sole discretion, to cancel a free trial at any time. ANY DATA UPLOADED TO THE SERVICE WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL UNLESS THE PARTY BECOMES A FULLY PAID MEMBER. NO CRITICAL DATA SHOULD BE UPLOADED DURING THE FREE TRIAL. ALL DATA MUST BE EXPORTED PRIOR TO THE END OF THE FREE TRIAL PERIOD OR THE DATA MAY BE LOST. THE SERVICE IS PROVIDED "AS-IS" DURING THE FREE TRIAL TERM WITHOUT WARRANTY.
3. Apple Products Only
The Service is currently available only to Corporate Customers who wish to implement mobile device management for Apple devices we have approved for use. Kandji is not affiliated with or endorsed by Apple.
4.2. Age Restrictions. Kandji is directed at individuals 18 and older. No individual under the age of 18 should attempt to register for an account, subscribe to the Service, access the Service through a third-party account, or provide any personal information to us. If you believe we might have collected any personal information from or about an individual under 18, please contact us.
5. Kandji Service
5.1. The Service. Subject to Your compliance with this Agreement and, if You are a Corporate Customer, the payment of a Subscription Fee, Kandji hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable right during the selected Subscription Term of this Agreement to access and use the Service for Authorized Devices. Kandji will create a single account for the Corporate Customer who may then invite additional users. All invited users must be employees or contractors of the Corporate Customer. The right to access and use the Service shall not be considered a software license or an intellectual property license. When a Corporate Customer purchases a Subscription, we will make the Service available to the Corporate Customer and its Authorized Users along with industry-standard support pursuant to this Agreement and the applicable Order Forms, in any. We will use commercially reasonable efforts to make the online Service available 24 hours a day, 7 days a week, except for planned downtime we will alert You to beforehand and any unavailability caused by circumstances beyond our reasonable control, including, for example, a third-party attack, internet service provider failure, or an act of God.
5.2. Subscriptions. A Corporate Customer’s right to access and use the Service is purchased as a Subscription for a specific number of Authorized Devices and as detailed in Order Form. Corporate Customer shall not receive a rebate for any unused allotment of Authorized Devices at any time during the term. If Corporate Customer adds more Authorized Devices, it will be charged a prorated amount for the additional Authorized Devices through the remainder of the current Subscription Term. We will automatically increase the Subscription Fee for the following renewal term based on the number of Authorized Devices in a Corporate Account at the time of renewal.
5.3. No Cancellations. Corporate Customer may not cancel this Agreement until the end of the Subscription Term then in effect. A Corporate Customer Representative must contact us no less than ten (10) days prior to the end of the then-current Subscription Term to cancel.
5.4. Modifications To Service. Kandji, in its sole discretion, may modify the Service from time-to-time to improve, solve technical issues, and add or remove functionality to the Service. Kandji may undertake such modifications without Your consent. Said modifications shall not be the basis for a reduction in Subscription Fees. Kandji shall keep You informed as to any such modifications.
6. Service Options and Fees
6.1 Basic Plan Option. We offer Corporate Customers a variety of Service options with corresponding fee structures. Parties with less than 1,000 Apple devices shall be bound by this Agreement upon execution of an Order Form provided by Kandji, which shall be incorporated into this Agreement by reference. The specific fees, number of Authorized Devices, and other specifications shall be quoted directly in the Order Form. Where the terms of the Order Form and this Agreement conflict, this Agreement shall control.
6.2. Enterprise Service Option. This Agreement shall not apply to Corporate Customers seeking accounts in excess of 1,000 Apple devices. Please contact us to learn more about our Enterprise service solutions.
6.3. Payment. Corporate Customers agree to provide us with valid and updated credit card information and authorize us to charge such credit card for the initial Subscription Term and any renewal Subscription Terms. Such charges shall be made in advance, as stated on the website. Order Form, or any invoice we provide, as applicable. Invoiced charges are due immediately from the invoice date. Corporate Customers are responsible for providing complete and accurate billing and contact information to us and updating the payment information, if necessary.
6.4. Overdue Payments. If payment on an invoice is not received by the indicated due date or renewal date, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month or the maximum rate permitted by law, whichever is lower. The overdue payment interest rate shall in no way limit our rights to pursue any legal claim against Corporate Customers or limit the remedies available to us. We may suspend a Corporate Account until all overdue amounts are paid in full.
6.5. Automatic Renewal. Corporate Customer Subscriptions will automatically renew based on the then-current Subscription price subject to any adjustments for unused or additional Authorized Devices as determined in our sole discretion. The Subscription renewal will be charged to the credit card last used by the Corporate Customer to compensate Kandji, and renew for the same duration equal to the expiring Subscription Term.
6.6. Renewal Modifications. We reserve the right to change the Subscription price and renewal terms. Any such modifications shall go into effect at the end of the then-current Subscription Term and apply to the next Subscription Term.
6.7. No Refunds. There are no Subscription refunds with the exception of prorated credits for unused Authorized Devices that may apply to renewal charges. Prorated credits may be used solely as a deduction from renewal prices and will not be refunded to You as a cash or monetary payment or for any other form of legal consideration.
6.8. Taxes. Subscription Fees do not include any taxes or government fee withholdings. Corporate Customers are responsible for paying all taxes associated with purchases hereunder. If we have the legal obligation to pay or collect taxes for which Corporate Customers are responsible, we will do so and invoice the Corporate Customer unless we are provided with documentation from the appropriate taxing authority which we determine, in our sole discretion, relieves us of any duty to pay or collect taxes on behalf of the Corporate Customer.
6.9. Future Functionality. Purchases are not contingent on the delivery of any future Service functionality or features unless we agree to such delivery in writing.
7. Party Responsibilities and Restrictions
7.1. Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, we reserve all of our rights, title, and interest in and to the Service, including all of our related Intellectual Property rights. No rights are granted to You hereunder other than as expressly set forth in this Agreement.
7.2. Kandji Service. Kandji will provide You with access and use of the Service in a commercially reasonable manner. Corporate Customer shall provide us with a list of authorized Authorized Devices to be synced through the Service. Corporate Customer shall be provided with an administrative account wherein Corporate Customer Representatives can determine what software Authorized Users may or may not use through the Service. Corporate Customer shall be solely responsible for determining what software users shall be allowed to access, and agrees to defend and indemnify Kandji for any legal claims arising from such decisions as detailed in this Agreement.
7.3. Acceptable Use Policy. You warrant and represent that You have read and will comply with the Acceptable Use Policy
for the Service, which is incorporated herein by reference.
7.4. Your Data Authorization. You warrant that You have the legal right to possess, store, and transmit data through the Service. Corporate Customer further warrants that it has entered into authorization agreements with Authorized Users, often called a "Bring Your Own Device" ("BYOD") Agreement. Corporate Customer acknowledges and agrees that Kandji will not provide such documentation. Corporate Customer further agrees to verify the Service is compatible with any relevant BYOD agreements or similar policies prior to entering into this Agreement.
7.6. Email and Phone Marketing. You will comply with relevant laws on email messaging including, but not limited to, the CAN-SPAM Act, Canada Anti-Spam Laws, and General Data Protection Regulation and telephone marketing, including the Telephone Consumer Protection Act. You shall not mass market using the Service.
7.7. Blueprints. Corporate Customers have the option to select blueprints dictating what third-party software may be accessed through authorized Authorized Devices. Corporate Customer acknowledges and accepts blueprints are general templates, and Corporate Customer understands it may need to customize the settings to reflect its policies. Kandji does not warrant, guarantee, or otherwise represent that the blueprints meet specific Corporate Customer needs nor industry or legal standards.
7.8. Your Equipment. You are responsible for obtaining, maintaining, and securing Authorized Devices, equipment, and third-party software, hardware, and services required to access or otherwise use the Service. You agree to maintain reasonable security measures for any Authorized Devices, equipment, or software used to access the Service, and to keep such security measures and all software updated.
7.9. Kandji Access Security. We will issue Corporate Customers with login and password information for the Service. We will also provide Authorized Users with access information for the Service. Corporate Customer is solely responsible for securing all login and password information for its Corporate Account and Authorized Users. Corporate Customer shall notify Kandji as soon as possible if any such information is exposed to a third party or lost.
7.10. Exportation Prohibition. You agree not to remove or export the Service beyond the legal borders of the United States in violation of any export regulations or laws including, but not limited, to those of the United States Office of Foreign Assets Control, United States Department of Commerce, or any other agency of the United States.
7.11. Third-Party Integration. You agree to use the Service solely to administer and integrate with third-party products and services approved by Kandji. Should You seek to integrate with third-party services that are not approved, You understand the integration may fail and cause negative service issues with either the Kandji Service or third-party service. You agree to be liable for such developments.
(a) To use the Service for the benefit of anyone other than You unless expressly agreed to by us;
(b) Sell, resell, license, sublicense, distribute, make available, rent or lease the Service without our express consent;
(c) Transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, via the Service;
(d) Transmit malware via the Service;
(e) Attempt to gain unauthorized access to any Service or its related systems or networks;
(f) Circumvent the contractual usage limit;
(g) Copy the Service or any part, feature, function or user interface thereof;
(h) Access or use the Service in order to build a competitive product or service;
(i) Reverse engineer the Service in violation of current legal standards.
7.14. External Services. If You subscribe to a third-party service for sending electronic messages or for the creation and hosting of, or for posting content on, external-facing websites, You are responsible for complying with applicable law in your use of any cookies or other tracking technologies.
7.15. Removal of Content and Third-Party Applications. If we receive information that Your data or actions may violate applicable law or third-party rights, we will provide notice of such violation and You will promptly remove relevant data or applications from access through the Service. If You do not take the required action with twenty-four (24) hours, we may disable access to the Service until the potential violation is resolved.
7.16. Third-Party Services. You may access third-party offerings including apps, browsers, and software through the Service. Such third-party products or services, and any exchange of data between You and the third-party provider, is solely between You and the applicable third party. We do not warrant or support third-party products or services. We shall not be responsible for any disclosure, modification, or deletion of Your data resulting from any such access by third-party application providers. If the provider of any such third-party application ceases to make the third-party application available for use through the Service on reasonable terms, we may cease providing such service features without entitling You to any refund, credit, or other compensation.
7.17. Third-Party Applications and Your Data. If You choose to use a third-party application with the Service, You grant us permission to allow the third-party application and its provider to access Your data as required for the use of that application with the Service. We are not responsible for any disclosure, modification, or deletion of data resulting from access by the third-party provider.
7.18. Third-Party Application Integration. The Service provides integration with particularly third-party applications. You may be required to grant us access to Your account(s) with such third-party applications to facilitate integration and data flow. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Corporate Customers to any refund, credit, or other compensation.
7.19. Subject Matter Bans. You are solely responsible for the data You transmit though Kandji. See our Acceptable Use Policy
for prohibited forms of data.
8. Term and Termination
8.1. Term. This Agreement begins on the date it is first accepted by You and continues until all Subscription Terms, initial and renewal, have terminated or expired.
8.2. Terminate Automatic Renewal. Either party may terminate the automatic renewal of this Agreement by sending email notice to the other party indicating a desire to terminate at least thirty (30) days before the end of the then-current Subscription Term.
8.3. Termination During Term. Either party may terminate this Agreement at any time by giving the other party notice pursuant to the Notice Provisions of this Agreement (a) if the other party materially breaches any of the terms or conditions of this Agreement, (b) if the other party files a voluntary petition in bankruptcy or has an involuntary petition in bankruptcy filed against it, (c) if the other party is declared insolvent, makes an assignment for the benefit of creditors, appoints a receiver, conservator, or trustee to operate its business, or liquidates all or substantially all of its business assets, or the equivalent of any of the foregoing, or (d) in its performance hereunder, the other party recklessly or willfully violates applicable law.
8.4. Cure Option. A party accused of materially breaching any of the terms and conditions of this Agreement shall have thirty (30) days to cure the material breach. If the material breach consists of a failure to make full payment for a Subscription in a timely manner, for any reason, then Corporate Customer shall have a cure period of five (5) business days, not thirty (30) days, to provide full payment. If a party is able to cure a material breach as detailed in this clause, the contractual relationship shall proceed from the data of cure as though no material breach occurred.
8.5. No Refunds. Corporate Customer acknowledges and agrees that it shall receive no refund should this Agreement be terminated by either party for any reason at any time or should Corporate Customer or some or all of its Authorized Users stop using the Service.
8.6. Your Data Upon Termination. We will preserve Your data for the current Subscription Term unless You delete such data or instruct us to do so. Upon termination for any reason, we will make Your customer data available for electronic retrieval for a period of thirty (30) days. We reserve the right to delete Your data within sixty (60) days of termination. However, You may request that we take such action before the sixty (60) day period expires.
9.1 Pursuant to this Agreement, each party (“Receiving Party”) may learn, receive, hold, or have access to Confidential Information from the other party (“Disclosing Party”). “Confidential Information” means any information, technical data, or know-how, whether or not a statutory “trade secret” of the Disclosing Party, including, but not limited to, that which relates to research, product plans, intellectual property, products, services, customers, employees, documents, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, or finances of the Disclosing Party. Confidential Information shall include, without limitation, the terms and conditions of this Agreement and all your data. The foregoing notwithstanding, Confidential Information shall not include any information which: (i) is already known by means not subject to a confidentiality obligation of the Receiving Party at the time disclosed by the Disclosing Party; (ii) is or becomes available through public sources apart from any unauthorized disclosure by the Receiving Party; (iii) is obtained by the Receiving Party from a third party who has the right to disclose the same, or (iv) is independently derived by Receiving Party without recourse to any of the Confidential Information.
9.2 During the Term and at all times thereafter, the Receiving Party shall protect any Confidential Information received from the Disclosing Party: (i) by limiting use and disclosure of the same to its employees, and/or authorized agents or independent contractors to the extent necessary for them to perform the Receiving Party’s obligations in this Agreement; and (ii) by exercising reasonable care to prevent unauthorized use or disclosure, which shall in no event be less than the same degree of care it uses to protect its own information of like importance from unauthorized use or disclosure
9.3 Notwithstanding the foregoing, either party may disclose Confidential Information received hereunder: (i) pursuant to a mandatory discovery request, disclosure requirement, subpoena, court order or other order of a court, tribunal or government agency received by a party, in each case, only after the party receiving same has given prompt written notice thereof to the Disclosing Party; or (ii) other than your customer data received by Company, to the Receiving Party’s own legal counsel or independent accountant who have a need to know such Confidential Information. In each of (i) and (ii) of this paragraph, the Receiving Party shall (a) consult with the Disclosing Party prior to the disclosure of any Confidential Information, and (b) cooperate in good faith with the Disclosing Party, at the Disclosing Party’s expense, with any reasonable effort by Disclosing Party to resist the production of Confidential Information, including obtaining a protective order or defending a motion to compel the production of Confidential Information.
10. Intellectual Property
10.1 Ownership Rights. While we are granting You the right to access and use the Service, You shall have no ownership rights in the Service or its components, including, but not limited to, software, content, graphics, user interface, and applications. Kandji is the sole and exclusive owner of all rights and interests in all (a) patents, patent applications; (b) registered and unregistered trademarks, service marks, trade names, domain names, and all of the associated goodwill; (c) registered and unregistered copyrights and all other literary and author’s rights or moral rights; (d) trade secrets, know-how, show-how, concepts, ideas, methods, processes, designs, discoveries, improvements, and inventions, whether 0atentable or unpatentable; (e) all other intellectual, industrial, and proprietary rights now or hereafter coming into existence throughout the world; (f) applications for and registrations, renewals, and extensions of any of the foregoing; and (g) exclusive and non-exclusive license rights to any of the foregoing (collectively “Intellectual Property”) and other proprietary rights and interests in and to the Service and its components, such as software, and any documentation or data related thereto. Kandji shall own and retain all right, title and interest in and to (1) all improvements, enhancements or modifications to the Service and its components, (2) any software, applications, inventions or other technology developed by Kandji in connection with the set up or running of the Service or support, and (3) all intellectual property rights related to any of the foregoing. You acknowledge and agree that You do not have or acquire pursuant to or as a result of this Agreement, any ownership interest, license, lease or other right or interest in or with respect to the Services or any intellectual property in or to the Service or its component parts.
10.2. Prohibited Customer Actions. You will not directly or indirectly attempt to discover the source code, object code, or underlying components of the Service through reverse engineering, disassembling, penetration testing, or decompiling the Service or its components. You further agree not to create derivative works based on the Service and its components nor remove the trademark or information identifying the Kandji mark unless expressly agreed to by us in writing.
10.3 Customer Intellectual Property. You shall own all right, title and interest in and to (a) any intellectual property existing prior to the effective date of this Agreement that was owned or developed by You or your licensees or subcontractors, (b) anything developed by You independent of your relationship with us, (c) documents, email, or other data uploaded through the Service or otherwise provided to us in the course of using the Service, including all intellectual property rights therein, provided to us through use of the Service, or (d) any other data or documents uploaded to the Service by you, or one of your Authorized Users.
10.4. License to Host Your Data and Applications. You grant our contractors and us a worldwide, limited-term license to host, copy, transmit and display Your data as reasonably necessary for us to provide the Service in accordance with this Agreement. Subject to this limited license, we acquire no right, title, or interest in or to any of Your data.
10.5. Authorized User Data. Authorized Users may choose to transmit personally identifiable information to and through the Service. You represent and warrant that You have obtained appropriate permissions to share such information as is required under applicable law; and You otherwise have the legal right to share such information with Kandji.
10.6. Kandji Use Of Data. You grant Kandji the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including, without limitation, anonymous and aggregated information) concerning the use of customer data in the Services. You hereby grant us a worldwide, royalty-free license during and after the term hereof to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Kandji offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business and marketing.
10.7. License to Use Feedback. You grant to us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the operation of the Service.
10.8. Publicity. You grant us the right to use Your name and company logo on our website for publicity purposes.
10.9. Federal Government End-Users. We provide the Service for non-governmental use. If You intend to use the Service with federal government end-users, please contact us.
11. Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF KANDJI TOGETHER WITH ALL OF ITS AFFILIATES, CONTRACTORS, AND AGENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR USE OF THE SERVICE EXCEED THE TOTAL AMOUNT PAID BY CORPORATE CUSTOMER HEREUNDER FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE OR $9,500.00, WHICHEVER IS GREATER. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CORPORATE CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE, INDEMNITY OBLIGATIONS AS DETAILED IN THIS AGREEMENT, OR ANY INTELLECTUAL PROPERTY VIOLATION WE MAY CLAIM.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES; THIS INCLUDES, BUT IS NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA, BUSINESS, PROFITS, GOODWILL, OR OTHER INTANGIBLE LOSSES RESULTING FROM (I) THE USE OF SERVICES OR THE INABILITY TO USE SERVICES, (II) THE COST OF OBTAINING SUBSTITUTE SERVICES RESULTING FROM ANY TRANSACTION ENTERED INTO WITH KANDJI, (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR DATA TRANSMISSIONS, (IV) STATEMENTS BY ANY THIRD PARTY OR CONDUCT OF ANY THIRD PARTY USING SERVICES, OR (V) ANY OTHER MATTER RELATING TO THE SERVICE.
In some jurisdictions, it is not permitted to limit liability and, therefore, such limitations may not apply in all cases.
12. Warranty and Disclaimer
Kandji will use commercially reasonable efforts to maintain the Service and minimize errors and interruptions. However, You acknowledge and accept the Service may be temporarily unavailable for periods of time due to scheduled maintenance, required emergency maintenance, or because of causes or events beyond Kandji's reasonable control. Kandji shall provide You with prior notice of any scheduled maintenance that will materially impact your use of the Service.
ALL CONTENT OR FEATURES AVAILABLE THROUGH THE SERVICE AND THIRD-PARTY PROVIDERS ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND - EITHER EXPRESS OR IMPLIED. KANDJI DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED. KANDJI FURTHER DISCLAIMS THAT YOU SHALL OBTAIN ANY SPECIFIC RESULT FROM USING THE SERVICE. KANDJI DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW.
14. Dispute Resolution
14.1 Mediation. If a dispute arises between You and us, and if the dispute cannot be settled through direct discussions, the You and we agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to binding arbitration. Either party may trigger the mediation process by giving notice as detailed in this Agreement to the other and the mediation shall begin no later than sixty (60) days following the notice. The parties shall not be required or allowed to undertake discovery for the mediation process. The mediation shall take place at an agreed location in San Diego County, California, or if no agreement can be reached by the parties, a location in San Diego County, California designated by a mediator. Each party shall bear its own costs and expenses and an equal share of the mediator's and administrative fees for mediation.
14.2. Binding Arbitration. You and Kandji agree that any unresolved controversy or claim not resolved through mediation shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
14.2.a. Arbitrator. Claims shall be heard by a single arbitrator. Within thirty (30) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association. The place of arbitration shall be San Diego, California. The arbitration shall be governed by the laws of the State of California.
14.2.b. Depositions and Discovery. Depositions shall be limited to a maximum of one per party and shall be held within sixty (60) days of the making of a request. Additional depositions may be scheduled only with the permission of the arbitrator, and for good cause shown. Each deposition shall be limited to a maximum of four (4) hours duration. The arbitrator may authorize other discovery requested by the parties upon a showing of good cause.
14.2.c. Arbitration Decision and Award. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. The award of the arbitrators shall be accompanied by a reasoned opinion. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration initiated under this section. The arbitrator shall not award attorneys’ fees to the prevailing party in the dispute. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
14.2.d. Notwithstanding any language to the contrary in the contract documents, the parties hereby agree: that the arbitrator decision and award may be appealed pursuant to the AAA's Optional Appellate Arbitration Rules ("Appellate Rules"); that the underlying award rendered by the arbitrator shall, at a minimum, be a reasoned award; and that the underlying award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office. Following the appeal process the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.
14.2.e. Costs and Expenses. Each party shall bear its own costs and expenses and an equal share of the arbitrator's and administrative fees of arbitration.
Except as otherwise specified in this Agreement, all notices related to this Agreement or involving a dispute between You and Kandji must be in writing and will be effective upon personal delivery by the serving party on the receiving party or the second business day after sending the notice by email. You shall provide physical and email addresses when purchasing a Subscription to our Service at which you agree to receive notice from Kandji. You may send legal notices to us at the following address and said notices shall be considered delivered upon the same terms as mentioned previously in this clause:
16. Relationship of the Parties
This Agreement does not create a partnership, joint venture, agency, fiduciary, franchise, or employment relationship between You and us.
17. No Third-party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. You may not assign Your rights or obligations hereunder without our prior written consent, which consent shall not be unreasonably withheld. Kandji may assign its rights to a third party without Your consent, but only if such assignment does not materially impact the functionality of the Service as You use it at the time of the assignment and for a period of thirty (30) days thereafter.
20. Amendment and Modification
This Agreement may only be amended, modified, or supplemented by an Agreement in writing signed by each party hereto unless otherwise detailed herein.
No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
The terms and conditions of this Agreement shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate, including, but not limited to, the terms and conditions contained in Sections 1-2, 4-15, 17-19, 21, 22, and 24 as well as any addendums.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
24. Entire Agreement
This Agreement and the documents incorporated by reference in it constitute the sole and entire Agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and any other asserted Agreement, the statements in the body of this Agreement will control.