Last Updated: June 1, 2022

Welcome to the Kadince application, an internet-based service that helps financial institutions manage community involvement, marketing project management, and customer feedback (the “Subscription Services”). The Subscription Services are operated by Kadince, Inc. (“Kadince”). You are accessing the Subscription Services pursuant to an agreement between Kadince and the entity that provided you with the link to access the Subscription Services (“Customer”). This End User Terms of Use (these “Terms of Use”) describes the terms and conditions under which You may access and use the Subscription Services. These Terms of Use hereby incorporates by reference Kadince’s Privacy Policy located at https://kadince.com/legal/privacy-policy.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “SUBMIT” OR BY ACCESSING OR USING THE SUBSCRIPTION SERVICES YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS OF USE (ON BEHALF OF YOURSELF AND, AS APPLICABLE, THE ENTITY THAT YOU REPRESENT). IF THE INDIVIDUAL ENTERING INTO THESE TERMS OF USE OR OTHERWISE ACCESSING OR USING THE SUBSCRIPTION SERVICES IS DOING SO ON BEHALF OF, OR WITHIN HIS OR HER CAPACITY AS A REPRESENTATIVE, AGENT, OR EMPLOYEE OF AN ENTITY, SUCH INDIVIDUAL AND SUCH ENTITY AGREE THAT: (A) THE TERMS “YOU” OR “YOUR” AS USED HEREIN APPLY TO SUCH ENTITY AND, AS APPLICABLE, SUCH INDIVIDUAL; AND (B) YOU REPRESENT AND WARRANT THAT THE INDIVIDUAL ENTERING INTO THESE TERMS OF USE HAS THE POWER, RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS OF USE ON BEHALF OF SUCH ENTITY. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SUBSCRIPTION SERVICES.

A. User Generated Content. The Subscription Services may allow You to input or upload data, text, graphics, pictures, messages, notes, and/or other content (such uploaded content, the “User Generated Content”). You acknowledge and agree that Kadince may share this User Generated Content with the Customer and any other entity with access rights to Customer’s account within the Subscription Services (“Customer Account”). You agree that this information may be used by Customer or Kadince for any purpose.

B. Your Responsibility. You agree that You are solely responsible for the User Generated Content, and You agree not to post, transmit, or share User Generated Content on or through the Subscription Services for which all rights and permissions for use and posting You have yet to secure. You represent and warrant (i) You have the right to disclose and provide to Kadince and Customer any data provided through use and access of the Subscription Services, and that no materials of any kind submitted as User Generated Content or otherwise posted, transmitted, or shared on or through the Subscription Services will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity, or other personal or proprietary rights; or contain libelous, defamatory, or otherwise unlawful material; and (ii) that Kadince’s, Customer’s, and others with access to the Customer Account, and its and their use of and access to the User Generated Content via the Subscription Services complies with all applicable laws, rules, and regulations.

C. License To User Generated Content. You hereby grant to Kadince and Customer a royalty-free, non-exclusive, worldwide, right, and license (with the right to sublicense through multiple tiers) to host, store, transfer, reproduce, use, copy, store, process, transmit, and display User Generated Content for any purpose and use whatsoever.

D. Data Backup. Kadince disclaims liability for loss of User Generated Content and therefore You agree and accept that it is solely up to You, and You alone, to keep a separate record of User Generated Content. Likewise, You alone are responsible for ensuring that any User Generated Content posted, stored, or otherwise provided to Kadince and Customer is maintained current and up to date, and that all rights for Kadince, Customer, others with access to the Customer Account, and its and their licensees have rights to access and use the User Generated Content in accordance with all applicable laws.

E. Customer’s Rights. You acknowledge and agree that the User Generated Content is held by Kadince for the benefit of Customer, and not for Your benefit. Any benefit to You is ancillary to the foregoing. You agree that Kadince and Customer have no obligation to retain Customer Data, and that if any access to the Subscription Services is suspended or terminated You will not have access to the User Generated Content, absent a separate agreement between You and the Customer. You agree that Kadince has no duty to provide You with the User Generated Content, and has no liability for failing to provide such User Generated Content to You. Any return or delivery of the User Generated Content following termination or expiration of any authorized access to the Subscription Services are governed by and subject to Kadince’s separate subscription agreement with the Customer.

F. Aggregated Data. Without limiting and in addition to Kadince’s rights elsewhere You acknowledge and agree that (i) Kadince, its affiliates, and sublicensees may compile anonymous non-personally identifiable, technical, statistical, or analytical data gathered or generated directly by use of the User Generated Content or the use of the Subscription Services (“Aggregated Data”), (ii) Kadince, its affiliates, licensees, partners, and designated agents may use Aggregated Data to monitor and improve its products, services, or to provide customized services or technologies to its or their customers, and (iii) Customer hereby grants Kadince a royalty-free, non-exclusive, irrevocable, right and license (with the right to sublicense) to develop anonymous Aggregated Data from the User Generated Content and the use by You of the Subscription Services.

G. Monitoring Content. Kadince does not control and does not have any obligation to monitor: (a) User Generated Content; (b) any content made available by third parties; or (c) the use of the Subscription Service by its users. You acknowledge and agree that Kadince reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Subscription Service for operational and other purposes. If at any time Kadince chooses to monitor the content, then Kadince still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy. Kadince may block, filter, mute, remove or disable access to any User Generated Content uploaded to or transmitted through the Subscription Service without any liability to the user who posted such User Generated Content to the Subscription Service or to any other users of the Subscription Service. 

A. Account Activity. You are solely responsible for (i) maintaining the confidentiality and security of Your login and any other security or access information, if applicable, used by You, or anyone You authorize on Your behalf, to access the Subscription Services (collectively, “Access Information”), and (ii) preventing unauthorized access to or use of the information or other data You store or use in or with the Subscription Services (collectively, “Account Data”). You will be responsible for all electronic communications, including account registration and other account holder information, email, and other data (“Communications”) entered using the Access Information. It is assumed that any Communications received through use of the Access Information is sent or authorized by You. You agree to immediately notify Kadince and Customer if You become aware of any loss, theft, or unauthorized use of any Access Information. Kadince and Customer reserves the right to deny You access to the Subscription Services (or any part thereof) if Kadince reasonably believes that any loss, theft, or unauthorized use of Access Information has occurred. You must inform Kadince of, and hereby grant to Kadince and our third party providers permission to use, Access Information to enable Kadince to provide the Subscription Services to You, including updating and maintaining Account Data, addressing errors or service interruptions, and to enhance the types of data and services Kadince may provide to You in the future. Kadince may use, modify, display, distribute, and create new materials using such Access Information and Account Data to provide the Subscription Services to You. By submitting Access Information and Account Data, You automatically agree, or promise that the owner of such Access Information and Account Data has expressly agreed that, without any particular time limit, and without the payment of any fees, Kadince may use and share with Customer the Access Information, Account Data, and User Generated Content.

B. Submission Of Information. You agree to provide true, accurate, current, and complete information about You and You agree to not misrepresent Your identity, Your registration, or any other information that You provide to or through the Subscription Services. Failure to provide accurate and complete information during registration, account setup, or use of the Subscription Services may prohibit use by You of the Subscription Services or result in errors in information generated. Wherever You provide User Generated Content through the Subscription Services, You agree:

C. Ideas. You hereby agree that, notwithstanding anything to the contrary in this Terms of Use, as between you and Kadince, Kadince shall be the sole and exclusive owner of any enhancement requests, recommendations, corrections, feedback, and all other ideas provided by You to Kadince concerning the improvement or expansion of the Subscription Services (collectively, “Ideas”); provided, however, Customer Data shall not be deemed Ideas. You acknowledge this Terms of Use waives any and all competing claims or rights to the Ideas and hereby assigns ownership, if any, of the Ideas to Kadince.

A. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Subscription Services, you may contact our Designated Agent at the following address:

Kadince, Inc.
Attn: Legal Department (IP Notification)
2637 North Washington Boulevard #154

North Ogden, UT 84414
Email: copyright@kadince.com

B. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Subscription Services has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:

Your Notification of Claimed Infringement may be shared by Kadince with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to Kadince making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.

C. Counter Notification. If you receive a notification from Kadince that material made available by you on or through the Subscription Services has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Kadince with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Kadince’s Designated Agent through one of the methods identified in Section III.A, and include substantially the following information:

A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.

D. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Kadince in response to a Notification of Claimed Infringement, then Kadince will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Kadince will replace the removed User Generated Content or cease disabling access to it in 10 business days, and Kadince] will replace the removed User Generated Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Kadince’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Kadince’s system or network.

The following terms will apply generally to You and to any use of or access to the Subscription Services by You:

A. Services Used At Your Risk. From time to time Kadince may modify the Subscription Services and add, change, or delete features of the Subscription Services, in its sole discretion. Access to and use of the Subscription Services by You is personal to You and is not transferable by You to any other person or entity; therefore, You agree not to use the Subscription Services for anyone’s benefit but You and the Customer. Kadince acts solely as an operator of the Subscription Services for Your convenience and use of the Subscription Services, and any reliance by You upon any content or information (the “Materials”) available to You through the Subscription Services, including any action taken by You because of such use or reliance, is at Your sole risk. Neither Kadince, the Customer, nor any of Kadince’s third party providers, business partners, licensors, officers, directors, employees, shareholders, or agents is responsible or liable for, or makes any representations or warranties to You.

B. DISCLAIMER OF WARRANTIES. THE SUBSCRIPTION SERVICES PROVIDED TO YOU “AS IS” AND ON AN “AS AVAILABLE” BASIS. KADINCE, ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS AND PROVIDERS: (i) MAKE NO REPRESENTATION OR WARRANTY AS TO THE SUBSCRIPTION SERVICES OR ANY CONTENT OR INFORMATION AVAILABLE THROUGH THE SUBSCRIPTION SERVICES; (ii) DO NOT REPRESENT OR WARRANT THAT THE SUBSCRIPTION SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE; AND (iii) DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, TITLE OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NO ORAL OR WRITTEN ADVICE GIVEN BY ANY EMPLOYEE OR AGENT OF KADINCE SHALL CONSTITUTE OR CREATE ANY WARRANTY BY KADINCE. YOU RECOGNIZE AND ACCEPT THAT THE CURRENT STATE OF TECHNOLOGY DOES NOT ALLOW FOR ERROR-FREE USE OF THE SUBSCRIPTION SERVICES AND THAT INTERRUPTIONS, CRASHES, DOWNTIME, AND DELAY IN SERVICES MAY OCCUR FROM TIME TO TIME.

C. LIMITATION OF LIABILITY. KADINCE, ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS AND PROVIDERS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES (INCLUDING LOSS OF DATA, REVENUE, OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, THE SUBSCRIPTION SERVICES, INCLUDING THE USE OR INABILITY TO USE THE SUBSCRIPTION SERVICES, OR ANY CONTENT OR INFORMATION OBTAINED FROM OR THROUGH THE SUBSCRIPTION SERVICES OR ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION IN THE SUBSCRIPTION SERVICES OR THE CONTENT OR INFORMATION THEREIN, EVEN IF KADINCE, ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS AND PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF KADINCE, ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS AND PROVIDERS IN CONNECTION WITH THESE TERMS OF USE AND THE SUBSCRIPTION SERVICES, AND FOR ANY CLAIMS MADE IN CONNECTION THEREWITH WILL NOT EXCEED $5.00. THIS LIMITED REMEDY IS AGREED TO BY THE PARTIES AND SURVIVES A FAILURE OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU, BUT YOU AGREE THAT THE FOREGOING SHOULD BE APPLIED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

D. Communications. Kadince may communicate with You by email or by posting notices on or through the Subscription Services. You agree that all agreements, notices, disclosures, and other communications that Kadince provides to You electronically satisfy any legal requirement that such communication be in writing. Electronic alerts will be sent via email or notification through the Subscription Services or to the email address You have provided. You understand and agree that any alerts provided to You through the Subscription Services may be delayed or prevented by a variety of factors. While Kadince attempts to provide timely and accurate communications, Kadince neither guarantees the delivery or accuracy of the content of any such communication. You also agree that Kadince shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by You or any third party reliance on a communication. Automatic alerts may be sent to You updating You to certain changes to Your account. Voluntary alerts may be turned on by default. Voluntary alerts may then be customized, deactivated, or reactivated by You. If You request customer service or other assistance from Kadince, You acknowledge and agree that Kadince is authorized to access and view the Access Information to provide such assistance and support.

E. Ownership. You acknowledge and agree that, as between You and Kadince, Kadince owns and will retain all rights in and to the Subscription Services, the Materials, the content Kadince and its other licensors display through the Subscription Services, including the Subscription Service’s “look and feel,” and any intellectual or proprietary property and/or technology (in any form) made available to You as a part of or in conjunction with any of the foregoing. All rights not expressly granted to You under these Terms of Use are reserved by Kadince.

F. Termination. These Terms of Use will continue until terminated as set forth in these Terms of Use. You may terminate Your use of the Subscription Services effective upon written notice to Kadince or by not accessing the Subscription Services. Kadince may terminate these Terms of Use or suspend access by You or via the Account Data at any time, for any reason or no reason with or without notice to You. Upon the termination or expiration of these Terms of Use for any reason, all rights granted to You under these Terms of Use will end.

G. Indemnification. You agree to indemnify, defend, and hold harmless Kadince and Customer, and each of their affiliates respective licensors, subsidiaries, affiliates, officers, directors, employees, and agents from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or related to use of the Subscription Services by You or via the Account Data, breach or violation of these Terms of Use by You or infringement, or infringement by any other user of the Account Data, of any intellectual property or other right of anyone.

H. Notices. Kadince may give You notice by: (i) a notice on or through the Subscription Services or (ii) email to the email address provided by You. Such notice will be deemed to have been given upon the expiration of 48 hours after posting to the Subscription Services or 24 hours after sending if sent by email. Notice to Kadince shall be provided by a reputable overnight courier with required signed receipt, or via certified mail of the U.S. postal system, and shall be deemed effective solely upon receipt if delivered to, Kadince, Inc., 2485 Grant Avenue, Suite 300, Ogden, UT 84401, ATTN: Kadince Legal.

I. No Assignment; No Waiver. You may not assign or delegate these Terms of Use or any of Your rights or obligations under these Terms of Use without the prior written consent of Kadince. Any purported assignment in violation of the foregoing will be null and void. Kadince may assign and delegate its rights and obligations under these Terms of Use to any third party, and You hereby consent to such assignment. Any waiver by Kadince of any breach of any provision of these Terms of Use is not a waiver of any continuing or succeeding breach of that provision, a waiver of the provision itself, or a waiver of any right under these Terms of Use.

J. Relationship. You acknowledge, represent, and warrant that no joint venture, partnership, employment, or agency relationship exists between You and Kadince as a result of these Terms of Use or the access or use of the Subscription Services.

K. Export Controls. The information available on the Subscription Services and all related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to comply with all such laws and regulations and to obtain any licenses required for such use, export and import.

L. Entire Agreement; Modification; Counterparts. These Terms of Use, as may be amended from time to time, constitutes the entire agreement and understanding between You and Kadince concerning its subject matter, and supersedes in full all prior and contemporaneous written and oral agreements, understandings, proposals, promises, and representations concerning its subject matter and its terms; provided, however, nothing herein shall effect or terminate ongoing rights arising from any subscription agreement entered by Customer or any non-disclosure agreements entered into between You and Kadince. Kadince may modify these Terms of Use by providing notice thereof to You, and unless You cease access and use of the Subscription Services then You agree to such modifications.

M. Invalid Provision. If any part of these Terms of Use, for any reason, is declared by a court of competent jurisdiction to be invalid or unenforceable, then: (i) the validity and enforceability of all provisions of these Terms of Use not ruled to be invalid or unenforceable, will be unaffected; (ii) the effect of the ruling will be limited to the jurisdiction of the court making the ruling; (iii) the provision(s) held wholly or partly invalid or unenforceable will be deemed amended, and the court is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the parties’ intent as manifested herein; and (iv) if the ruling, or the controlling principal of law or equity leading to the ruling is subsequently overruled, modified, or amended by legislative, judicial, or administrative action, then the provision(s) in question as originally set forth in these Terms of Use will be deemed valid and enforceable to the maximum extent permitted by the new controlling principal of law or equity.

N. Governing Law/Waiver Of Jury Trial. These Terms of Use are made under and will be construed in accordance with the laws of the State of Utah, other than such laws, rules, regulations, and case law that would result in the application of the laws of a jurisdiction other than the State of Utah. Except as permitted under Section III.O, any suit to enforce any provision of these Terms of Use, or arising out of or based upon these Terms of Use, shall be brought exclusively in the state courts of the State of Utah located in Weber County, and the federal courts of the United States, located in Salt Lake City, Utah. You hereby agree that such courts shall have in personam jurisdiction and venue with respect to you, and you hereby submit to the in personam jurisdiction and venue of such courts and waive any objection based on inconvenient forum. THE PARTIES HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THESE TERMS OF USE.

O. Injunctive Relief. You agree that any violation or breach of these Terms of Use by You may cause Kadince irreparable harm. Accordingly, in addition to any other remedies available at law or equity, Kadince shall be entitled to an injunction or other decree of specific performance with respect to any violation or explicit threat thereof in any court of competent jurisdiction, without any bond or other security being required and without the necessity of demonstrating actual damages.

P. Construction. The captions and headings contained in these Terms of Use are for purposes of convenience only and are not a part of these Terms of Use; all references to these Terms of Use and the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to these Terms of Use as a whole and not to any particular section, or other subdivision unless expressly specified otherwise; and the words “including,” “included,” and “includes” mean inclusion without limitation. In the event of any ambiguities in the language hereof, there shall be no inference drawn in favor of or against either party.