Effective Date: 04/01/2022
Last Revised: February 28, 2022
This summary provides a rough outline of the terms and conditions below it. This summary is provided solely for convenience. In the event of any conflict or uncertainty between the summary and the terms and conditions, the terms and conditions shall control.
- This agreement is between KCF and your business for your business’ use of SmartDiagnostics products and services. When we refer to “you,” we mean you and your business, as applicable. KCF may modify this agreement and will notify you if substantial changes are made.
- KCF does not own or control your content (i.e., your data and information) in SmartDiagnostics, but KCF may copy, modify, and use your content to provide and enhance the SmartDiagnostics products and services.
- KCF will take measures to safeguard your content against loss and unauthorized access or disclosure. KCF will store your content for no more than 1 years.
- You are responsible for properly configuring and using SmartDiagnostics and maintaining appropriate security, privacy, and backup of your content.
- You agree that KCF’s use of your content does not violate the rights of a third party (e.g., another business) and that KCF may remove your content from SmartDiagnostics if it exposes KCF to risk.
- KCF solely owns all intellectual property associated with SmartDiagnostics hardware and software and future additions to SmartDiagnostics.
- KCF may maintain, upgrade, patch, and add feature enhancements to SmartDiagnostics. KCF will notify you in advance of making substantial changes.
- KCF is not liable for failure of your equipment, loss of your content, inaccuracies in your content or conclusions or actions derived from it, nor for the violation of the rights of third parties (e.g., other businesses) by your content.
- You agree to comply with domestic and international laws, including laws pertaining to export of data.
- Any legal action related to SmartDiagnostics or this agreement must be brought in a court where KCF’s main office is located.
- Your SmartDiagnostics license ends when this agreement is terminated or expires based on the Terms of Sale. KCF may use your content after the agreement is terminated or expires under the same terms and conditions that apply to KCF’s use of your content while the agreement is in force.
TERMS AND CONDITIONS
1. Scope and Modification
SmartDiagnostics collects and stores content, data, and information (collectively, “Content”) entered by and acquired from You and generates data related to such Content. KCF does not control Your Content and does not claim ownership to Your Content. By providing Content to SmartDiagnostics, You grant to KCF the perpetual, irrevocable right to copy, modify, and use Your Content and any data generated from Your Content to provide SmartDiagnostics to You and to develop and enhance KCF’s products and services, such as its analysis algorithms, data manipulation techniques, and machine learning methods. KCF will use commercially reasonable efforts to store Your Content for no more than one (1) year from the date it was originated and to provide You with the opportunity to download Your Content prior to KCF’s deleting it. You warrant that KCF’s use of Your Content will not infringe upon, misappropriate, or violate rights of any third party and that KCF may remove from SmartDiagnostics any of Your Content that it believes exposes KCF to risk, for any reason and in KCF’s sole discretion.
Regardless of whether or not the following information is designated as confidential information, it shall not be considered confidential information: (a) information which is publicly known as of the date of this Agreement; (b) information which becomes publicly known, unless as a result of the fault of KCF; (c) information which You agree in writing is not confidential; and (d) information which is required to be produced by law or judicial process (however, upon receipt of a demand for production of confidential information pursuant to law or judicial process, the KCF shall use reasonable efforts to notify You of such demand in sufficient time to allow You to move to prevent such disclosure.
In order to maintain the integrity and security of SmartDiagnostics, KCF may perform maintenance to SmartDiagnostics, including upgrades, patches, and feature enhancements on client-side devices (i.e., hardware on Your premises that collects and provides Content to SmartDiagnostics’ cloud services) and server-side devices (i.e., hardware used by KCF to receive Content from client-side devices and to provide SmartDiagnostics’ cloud services), at any time and within its discretion. KCF will make commercially reasonable efforts to notify You in advance of maintenance, except for emergency maintenance, and You agree to make commercially reasonable efforts to enable KCF to perform all maintenance under the circumstances.
5. Feedback and Intellectual Property
KCF is open to Your feedback, and You agree that KCF may use Your feedback (including all ideas, comments, suggestions, techniques, and concepts) to further enhance KCF’s products and services without any obligation to You, including any obligation of compensation or attribution. Subject to the terms and conditions of the Agreement, KCF grants to You a limited, non-exclusive, non-transferable, non-sublicensable right to use SmartDiagnostics for Your own internal business purposes in a manner consistent with this Agreement and any SmartDiagnostics documentation provided by KCF. Except as expressly provided in this Agreement or otherwise in writing, KCF reserves all rights, title, and interest to SmartDiagnostics and the intellectual property related to SmartDiagnostics developed by KCF, including intellectual property developed by KCF that is based on feedback or Content, unless otherwise limited by a separate written agreement between You and KCF. Except as expressly provided in this Agreement or otherwise in writing, You reserve all rights, title, and interest to Your Content, Your equipment, and Your business operations and processes independent of SmartDiagnostics, including all related intellectual property.
6. Warranties and Disclaimers
The Terms of Sale provide warranty and disclaimer of warranty terms applicable to SmartDiagnostics.
7. Limitation of Liability, Indemnification, and Force Majeure
To the maximum extent permitted by law, each of You and KCF agrees that neither party, nor its affiliates, officers, directors, employees, shareholders, representatives, agents, or contractors, shall be liable to the other party, nor its affiliates, officers, directors, employees, shareholders, representatives, agents, or contractors, for any indirect, special, incidental, exemplary, punitive, or consequential damages, nor for any damages arising from delay, loss of goodwill, loss of, damage to, or unauthorized access to data, interruption in use or availability of data, loss of use of money or use of products, lost profits, revenue or savings (actual or anticipated), or other economic loss ensuing from or in connection with SmartDiagnostics or this Agreement, even if such party has been advised of the possibility of such damages. KCF shall not be liable for inaccuracies in Your Content or conclusions or actions derived from it nor its violation of third party rights, nor for any failure of Your equipment not provided by KCF. To the maximum extent permitted by law, KCF’s aggregate liability to You shall not exceed the monies received from You for Your access to and use of SmartDiagnostics. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.
KCF agrees to indemnify and hold You and Your affiliates harmless from any damages arising out of or connected to claims, actions, or proceedings asserted by third parties based upon or related to (a) KCF’s failure to properly license any third-party software provided by KCF to You in connection with providing SmartDiagnostics to You and (b) KCF’s material breach of this Agreement.
You agree to indemnify and hold KCF and affiliates harmless from any damages arising out of or connected to claims, actions, or proceedings asserted by third parties based upon or related to (a) any unlicensed use of Your Content and (b) Your material breach of this Agreement.
Neither You nor KCF will be liable for delay or failure to perform obligations under this Agreement where the delay or failure results from a cause beyond either party’s reasonable control, such as utility failures or, more generally, acts of God.
The Terms of Sale provide additional limitation of liability, indemnification, and force majeure applicable to SmartDiagnostics. To the extent of any conflict or ambiguity between the terms in this Section above and similar terms in the Terms of Sale, the terms in this Section above shall control.
8. Compliance with Certain Laws
You agree to comply with domestic and international laws, including export laws and regulations, that apply to Your use of SmartDiagnostics.
9. Expiration and Termination
Your license to use SmartDiagnostics shall end upon expiration or termination of this Agreement or as provided in the Terms of Sale. KCF’s license to use Your Content as provided above shall survive any expiration or termination of this Agreement. After expiration or termination of this Agreement, KCF may retain Your Content indefinitely but KCF is not obligated to retain or maintain Your Content or Your access to Content, provided that KCF will provide a reasonable means for You to retrieve Your Content upon expiration or termination of this Agreement at Your request received prior to such expiration or termination. KCF’s obligations of confidentiality under this Agreement with respect to Your Content and Your confidential information shall survive for as long as KCF retains Your Content or any of Your confidential information.
10. Services Provided from United States.
SmartDiagnostics is controlled and operated from facilities in the United States. Those who access or use
SmartDiagnostics from other jurisdictions do so at their own volition, expressly consent to the application of United States law to all aspects of their access to and use of SmartDiagnostics, including with respect to the collection and use of data, and are entirely responsible for compliance with all applicable United States and local laws and regulations, including export and import regulations.
11. Choice of Law and Choice of Venue.
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to principles of conflicts of law. Any action, suit or proceeding arising out of or related to SmartDiagnostics or this Agreement shall be brought only in the courts with proper subject matter jurisdiction located in or having jurisdiction over the county in which KCF has its principal place of business at the time of filing of such action, suit or proceeding, and the parties hereby unconditionally and irrevocably consent and submit to the exclusive jurisdiction of such courts and waive any objection that they may now or hereafter have with respect thereto.
12. Incorporation by Reference of Additional Terms, Conditions, Policies, and Statements