Invitee Terms and Conditions

Effective Date: February 19, 2024

 

Introduction. If you are an Invitee, and not otherwise a Customer yourself, these Invitee Terms and Conditions (the “Invitee Terms”) govern your access and use of RadiansERP. Please read them carefully as these Invitee Terms are a legally binding contract between you and Knowledge Transfer LLC. As part of these Invitee Terms, you agree to comply with the most recent version of our Acceptable Use Policy (“AUP”), which is incorporated by reference into these Invitee Terms. If you access or use RadiansERP (or continue accessing or using RadiansERP after being notified of a change to these Invitee Terms or the AUP), you confirm that you have read, understand, and agree to be bound by the Invitee Terms and AUP. Capitalized terms used below but not defined in these Invitee Terms have the meaning set forth in the Definitions.

READ THESE INVITEE TERMS CAREFULLY BEFORE ACCESSING OR USING RADIANSERP AS ACCESS OR USE OF RADIANSERP INDICATESTHAT YOU HAVE BOTH READ AND ACCEPTRED THESE INVITEE TERMS. THESE INVITEE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE INVITEE TERMS AND WITH RESPECT TO DISPUTES You MAY HAVE WITH KNOWLEDGE TRANSFER LLC. YOU ACKNOWLEDGE THAT YOU ARE ENTERING INTO THESE INVITEE TERMS VOLUNTARILY AND NOT IN RELIANCE ON ANY PROMISES OR REPRESENTATIONS WHATSOEVER EXCEPT THOSE CONTAINED IN THE INVITEE TERMS THEMSELVES.

1. Circumstances.

As an Invitee, you were provided with access controlled by a Knowledge Transfer LLC Customer, authorizing you to utilize RadiansERP with that Customer (either an individual Customer or an Authorized User of an Entity, either an “Authorized User”). This means that the Customer has separately agreed to either our Customer Terms or entered into a Master Services Agreement  (either as applicable, the “Customer Agreement”) with us that permits the Authorized User to access and use RadiansERP, including providing access to their Invitees. The Customer Agreement contains our commitment to deliver RadiansERP to Customer, who may then reasonably invite Invitees. When you submit content or information to RadiansERP, such as name, email or phone number, you acknowledge and agree that such data is Customer Data. Such Customer Data is owned by Customer and the Customer Agreement provides Customer with many choices and control over that Customer Data. For example, Customer may provision or deprovision access to RadiansERP, enable or disable integrations with Third Party Applications, manage permissions, retention and export settings, or transfer or assign Knowledge Transfer LLC Accounts to other Authorized Users and these choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all Customer Data.

2. DISCLAIMER

AS BETWEEN US AND CUSTOMER, YOU AGREE THAT IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO (A) INFORM YOU OF ANY RELEVANT CUSTOMER POLICIES AND PRACTICES AND ANY SETTINGS THAT MAY IMPACT THE PROCESSING OF CUSTOMER DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS, OR CONSENTS FROM YOU THAT ARE NECESSARY FOR THE LAWFUL USE OF CUSTOMER DATA (INCLUDING PERSONAL DATA WITHIN CUSTOMER DATA) AND THE OPERATION OF RADIANSERP; (C) ENSURE THAT THE TRANSFER AND PROCESSING OF CUSTOMER DATA UNDER THE CUSTOMER AGREEMENT IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU RELATING TO OR BASED ON CUSTOMER DATA, RADIANSERP OR CUSTOMER’S FAILURE TO FULFILL THESE OBLIGATIONS. KNOWLEDGE TRANSFER LLC MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO RADIANSERP, WHICH ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS.

3. Use Restrictions

a. Age. Unless you are subject to Industry-Specific Terms, RadiansERP is not intended for and should not be used by anyone under the age of eighteen (18) (“Legal Age”). You represent that you are over the Legal Age and are the intended recipient of Customer’s invitation to RadiansERP. You may not access or use RadiansERP for any purpose if either of the representations in the preceding sentence are untrue.

b. AUP. You must comply with our Acceptable Use Policy and any applicable policies established by Customer. If you see inappropriate behavior or content, please report it to Knowledge Transfer LLC at [email protected].

c. Term. These Invitee Terms remain effective until the Customer Agreement expires or terminates or your access to RadiansERP has been terminated by Customer or us. We may suspend or terminate your access to RadiansERP at any time with or without notice to you.

d. Investigation. Knowledge Transfer LLC reserves the right (but does not have the obligation) to investigate complaints or reported violations of these Invitee Terms and to take any action Knowledge Transfer LLC deems appropriate, including but not limited to suspending or permanently revoking your access to RadiansERP, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your Account, e-mail addresses, usage history, posted materials, IP addresses, and traffic information, as allowed under our Privacy Notice. You agree to promptly notify Knowledge Transfer LLC in the event that you are made aware of any unauthorized or illegal use of the RadiansERP, by emailing [email protected].

4. DISPUTE RESOLUTION; CLASS ACTION WAIVER

            THE CLAUSES BELOW AFFECT YORU LEGAL RIGHTS. PLEASE READ THEM CAREFULLY.

a. General. This Section 4 facilitates the prompt and efficient resolution of any Dispute that may arise between you and Knowledge Transfer LLC. “Dispute” includes but is not limited to any and all claims, disputes or controversy (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) arising out of or relating to the Invitee Terms, including the breach, application, validity, interpretation or scope thereof, including the determination of the scope or applicability of these Invitee Terms to arbitration, whether presently in existence or based on acts or omissions in the past or in the future. This Section provides that, except for the “Exceptions” identified below in Section 4(g), all Disputes between you and Knowledge Transfer LLC, which are unable to be resolved pursuant to the Pre-Arbitration Claim Resolution Section below, will be resolved exclusively and finally by binding arbitration rather than in court in accordance with this Section 4.

b. Pre-Arbitration Claim Resolution. For all Disputes, you must first give us an opportunity to cure or resolve the Dispute which is first done by emailing us at [email protected] and sending the following information: (i) your name, (ii) your address, (iii) a written description of your claim, and (iv) a description of the specific relief you seek. If we do not resolve the Dispute within 45 days after receiving your notification, then you may pursue your Dispute in arbitration.

c. Arbitration Procedures

i. Initiation of Proceedings and Rules. If the Dispute is not resolved as provided in Section 4(b) above, either you or Knowledge Transfer LLC may initiate arbitration proceedings with the Judicial Arbitration and Mediation Service (JAMS). The arbitration shall be conducted in English before a single arbitrator and administered by JAMS in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “JAMS Streamlined Arbitration Rules”) in effect on the date the arbitration is filed and will be governed by the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (the “JAMS Minimum Consumer Standards”).  You may obtain copies of the current JAMS Streamlined Arbitration Rules, forms, and instructions for initiating an arbitration with JAMS by contacting JAMS online at www.jamsadr.com.

ii. Arbitrator and Venue. The arbitrator will be agreed to by the parties; provided, however, if the Parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry in accordance with the JAMS Streamlined Arbitration Rules. The place of arbitration shall be in the county where you reside unless otherwise agreed upon by the Parties.

iii. Federal Arbitration Act and Governing Law. The arbitrator will be empowered to determine the arbitrability of any Dispute between us and, because RadiansERP and these Invitee Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) shall govern the arbitrability of all Disputes. However, unless the arbitrator determines it would be more appropriate to apply the substantive law or another U.S. jurisdiction or unless preempted by the FAA, the arbitrator will apply Florida state law and applicable U.S. federal law (without regarding to conflict or choice of law principles) consistent with the FAA and the applicable statute of limitations or condition precedent to commencing a Dispute.

iv. Remedies, Relief and Cost. This Section 4 shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator can award any damages or relief that a court of law could, including individual injunctive relief and reasonable attorneys’ fees when available under the governing law and will be final and binding on you and Knowledge Transfer LLC, without any right of appeal. The arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitrator’s award will address all claims properly brought before the arbitrator and will include the essential findings and conclusions upon which the arbitrator based the award. Judgment upon any such award may be enforced in any court of competent jurisdiction.

d. Class Action Waiver. The arbitration will be commenced as an individual arbitration and will in no event be commenced as a class arbitration. To be clear, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action). You acknowledge and agree that you are waiving any ability to join or consolidate your Dispute in arbitration with the Dispute of any other person and to bring any Dispute on a class basis, in a representative capacity, on behalf of the general public, or on behalf of any other person.

e. Conflict. Where there is a conflict or inconsistency between the JAMS Streamlined Arbitration Rules and procedures and this arbitration provision, this arbitration provision will govern. If any clause within this “Dispute Resolution and Arbitration” provision (other than the Class Action Waiver clause) is found to be illegal or unenforceable, that clause will be severed from this provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire provision will be unenforceable, and the dispute will be decided by a court. This “Dispute Resolution and Arbitration” provision will survive the termination of your Account with us or our affiliates and your discontinued use of RadiansERP.

f. Confidentiality. You and Knowledge Transfer LLC agree that any arbitration proceedings initiated hereunder shall be kept in strict confidence, meaning that you and Knowledge Transfer LLC agree not to disclose or cause to be disclosed to any third party the Dispute(s) to be arbitrated hereunder, or any of the underlying facts, circumstances, documents, and other materials relating to such Dispute(s), except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law.

g. Exceptions. We each agree not to invoke our right to arbitrate any individual Dispute each of us may bring in small claims court or an equivalent court with jurisdiction, so long as the Claim is pending only in that court. This arbitration provision does not limit or constrain Knowledge Transfer LLC’s right to interplead funds in the event of claims to funds associated with payments you owe to several parties. To the extent a Dispute cannot legally be arbitrated (as determined by the arbitrator), the Parties will bring the suit, action, or proceeding that cannot be arbitrated according to Section 7(h) below.

5. Limitation of Liability

If we believe there has been a violation of the Customer Agreement, Invitee Terms, AUP, or any of our other policies that can simply be remedied by Customer’s removal of certain Customer Data or taking other action, we will, in most cases, ask Customer to act rather than intervene. We may directly step in and take what we determine, in our sole discretion, to be appropriate action (including disabling your access to RadiansERP) if Customer does not take appropriate action or we believe there is a credible risk of harm to use, RadiansERP, Authorized Users, or any third parties. IN NO EVENT WILL KNOWLEDGE TRANSFER LLC HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR TOTAL AGGREGATE LIABILITY TO YOU IN CONNECTION WITH RADIANSERP OR THESE INVITEE TERMS WILL NOT EXCEED ONE HUNDRED DOLLARS ($1,000). THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND DO NOT LIMIT EITHER PARTY’S RIGHT TO SEEK AND OBTAIN EQUITABLE RELIEF.

6. Survival. Section 2 (Disclaimer), Section 4 (Dispute Resolution; Class Action Waiver); Section 5 (Limitation of Liability), Section 6 (Survival), and Section 7 (Miscellaneous) will survive any termination or expiration of these Invitee Terms.

7. Miscellaneous

a. Entire Agreement. These Invitee Terms, including any terms incorporated by reference herein, constitutes the entire agreement between you and Knowledge Transfer LLC and supersede all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. To the extent of any conflict of inconsistency between the provisions in these Invitee terms and any pages reference herein, the Invitee Terms will first prevail; however, that if there is a conflict or inconsistency between the Customer Agreement and the Invitee Terms, the Customer Agreement will first prevail, followed by the provisions of these Invitee Terms, and then followed by the pages referenced herein (e.g. AUP).

b. Notices. All notices under these Invitee Terms will be by email. Notices to Knowledge Transfer LLC should be sent to [email protected], except for legal notices, which must be sent to [email protected]. A notice will be deemed to have been duly given the day after it is sent via email. Notices under the Customer Agreement will be delivered solely to Customer in accordance with the Customer Agreement.

c. Messages. By accepting access as an Invitee with a Knowledge Transfer LLC Customer, you consent to receive transactional or related emails. If, as an Invitee, you provide your phone number for text notifications, you also consent to receive SMS notifications from Knowledge Transfer LLC related to the activity between you and the Knowledge Transfer LLC Customer and you also agree to comply with the terms and conditions of the SendGrid/Twilio Acceptable Use Policy when sending and/or receiving such SMS notifications, when applicable.

d. Privacy. Please review our Privacy Notice for more information on how we collect and use Personal Data when you use RadiansERP as an Invitee.  You acknowledge that your use of RadiansERP to schedule a meeting with a Knowledge Transfer LLC User serves as your consent to Knowledge Transfer LLC’s processing of Personal Data as set forth in our Privacy Notice. If you wish to exercise your rights with respect to your Personal Data in Customer Data under a data protection law, please reach out to the Customer who collected your Personal Data. If you wish to exercise your rights with respect to data Knowledge Transfer LLC collects as described in the Privacy Notice, please use the methods provided in our Privacy Notice to contact us.

e. Waiver. No failure or delay by either party in exercising any right under the Invitee Terms, including the AUP, will constitute a waiver of that right. No waiver under the Invitee Terms will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

f. Severability. The Invitee Terms, including the AUP, will be enforced to the fullest extent permitted under Applicable Law. If any provision of the Invitee Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the extent permitted by law, and the remaining provisions of the Invitee Terms will remain in effect.

g. Assignment. You may not assign any of your rights or delegate your obligations under these Invitee Terms, including the AUP, whether by operation of law or otherwise, without the prior written consent of us (not to be unreasonably withheld). We may assign these Invitee Terms in their entirety (including all terms and conditions incorporated herein by reference), without your consent, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets.

h. Governing Law; Venue. These Invitee Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Florida. Except as otherwise expressly set forth in Section 4, the exclusive jurisdiction for all Disputes that you are not required to arbitrate will be the state and federal courts located in Seminole County, Florida.

            i. Use by or for the U.S. Government. RadiansERP is a “commercial product,” “commercial service,” and “commercially off-the-shelf (COTS) item” as defined at 48 C.F.R. §2.101, and constitute “commercial computer software” and “commercial computer software documentation,” as used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202 to §227.7204. This commercial computer software and related Documentation is provided to end users for use, by and on behalf of the U.S. Government, with only those rights as are granted to all other end users pursuant to the terms and conditions herein.