Skip to content
Contact us

Kinetic Terms of Service

Last modified: December 2, 2024

These Terms of Service (these "Terms") is a binding agreement between you ("Customer," "you," or "your") and One Million Metrics Corp., d/b/a Kinetic ("Kinetic," "we,", “our” or "us"), a Delaware corporation with an address at 530 7th Ave. Suite 409, New York, NY 10018. These Terms govern your access to and use of Kinetic’s Software-as-a-Service offering in which we host our Kinetic software that (a) flags potential hazards in the workplace using photos; and (b) provides users documentation of hazards (the “Service”)
 
THESE TERMS TAKE EFFECT WHEN YOU ACCESS OR USE THE SERVICE (THE "EFFECTIVE DATE"). BY ACCESSING OR USING THE SERVICE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS AND, IF ENTERING INTO THESE TERMS FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE. YOU MAY ALSO NOT ACCESS THE SERVICE IF YOU ARE A COMPETITOR OF KINETIC, EXCEPT WITH OUR PRIOR WRITTEN CONSENT.
  1. Definitions. 
    1. “Aggregated Statistics” has the meaning set forth in Section 7.
    2. “Authorized User” means you and your employees, consultants, contractors, and agents (i) who are authorized by you to access and use the Service under the rights granted to you pursuant to these Terms, and (ii) for whom access to the Service has been purchased hereunder in accordance with the applicable purchase order.
    3. “Confidential Information” has the meaning set forth in Section 14.
    4. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Service.
    5. “Documentation” means Kinetic's user manuals, handbooks, and guides relating to the Service provided by Kinetic to Customer either electronically or in hard copy form. 
    6. “Feedback” has the meaning set forth in Section 19.
    7. “Fees” has the meaning set forth in Section 11.
    8. “Initial Subscription Term” has the meaning set forth in Section 15.
    9. “Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, and corporate names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including technology and computer programs) and mask works; (d) trade secrets, know-how and other confidential information; and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations or rules in any jurisdiction throughout the world.  
    10. “Improvements” has the meaning set forth in Section 18. 
    11. “Kinetic IP” means the Service (including any software component of the Service), the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Kinetic IP includes Aggregated Statistics and any information, data, or other content derived from Kinetic's monitoring of Customer's access to or use of the Service but does not include Customer Data.
    12. “Kinetic Product” has the meaning set forth in Section 19.
    13. “Losses” has the meaning set forth in Section 20(a)(i).
    14. “Order Form” has the meaning set forth in Section 2. 
    15. “Privacy Policy” has the meaning set forth in Section 9.
    16. “Renewal Subscription Term” has the meaning set forth in Section 15.
    17. “Service” has the meaning set forth in the preamble to these Terms.
    18. “Service Suspension” has the meaning set forth in Section 8.
    19. “Subscription Term” has the meaning set forth in Section 15.
    20. “Third Party Claim” has the meaning set forth in Section 20(a)(i).
    21. “Third-Party Components” has the meaning set forth in Section 13.
  2. Subscription.  You will have access to the Service as set forth in an Order Form (the “Order Form”) which sets forth the number of sites, the term, the number of users you shall provide access to and the appropriate Fee for the Service.
  3. Access to the Service.  Subject to and conditioned upon your payment of the Fees set forth in the Order Form and compliance with the terms and conditions set forth in these Terms, Kinetic hereby grants you a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Service during the Subscription Term solely for your internal business operations by Authorized Users in accordance with the terms and conditions herein. Kinetic shall provide you the necessary passwords and access credentials to allow you to access the Service. 
  4. Account Use. You are responsible and liable for all uses of the Service resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, you are responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by you will be deemed a breach of these Terms by you. You shall use reasonable efforts to make all Authorized Users aware of the provisions of these Terms applicable to such Authorized User's use of the Service and shall cause Authorized Users to comply with such provisions. 
  5. Customer Data. You hereby grant to Kinetic a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display Customer Data and perform all acts with respect to the Customer Data as may be necessary for Kinetic to provide the Service to you, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. You will ensure that Customer Data and any Authorized User's use of Customer Data will not violate any policy or terms referenced in or incorporated into these Terms or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Customer Data.  You warrant that you own all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and your use of the Service are in compliance with the AUP.
  6. Passwords and Access Credentials. You are responsible for keeping your passwords and access credentials associated with the Service confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials.
  7. Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, Kinetic may monitor your use of the Service and collect and compile data and information related to your use of the Service to be used by Kinetic in an aggregated and anonymized, de-identified, or otherwise obfuscated manner, including to compile statistical and performance information related to the provision and operation of the Service ("Aggregated Statistics"). As between Kinetic and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Kinetic. You acknowledge that Kinetic may compile Aggregated Statistics based on Customer Data input into the Service. You agree that Kinetic may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify your Confidential Information. 
  8. Suspension of the Service. Notwithstanding anything to the contrary in this Agreement, Kinetic may temporarily suspend your  and any other Authorized User's access to any portion or all of the Service if: (i) Kinetic reasonably determines that (A) there is a threat or attack on the Service; (B) your or any other Authorized User's use of the Service disrupts or poses a security risk to the Service or to any other customer or vendor of Kinetic; (C) you or any other Authorized User is using the Service for fraudulent or illegal activities; (D) subject to applicable law, you have ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Kinetic's provision of the Service to you or any other Authorized User is prohibited by applicable law; or (ii) any vendor of Kinetic has suspended or terminated Kinetic's access to or use of any third-party services or products required to enable Customer to access the Service (any such suspension described in subclause (i) or (ii), a "Service Suspension"). Kinetic shall use commercially reasonable efforts to provide written notice of any Service Suspension to you and to provide updates regarding resumption of access to the Service following any Service Suspension. Kinetic shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Kinetic will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Customer or any other Authorized User may incur as a result of a Service Suspension.
  9. Privacy Policy. Kinetic complies with its privacy policy available at https://kineticcomp.com/privacy ("Privacy Policy"), in providing the Service. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Service, you acknowledge that you have reviewed and accepted our Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of our Privacy Policy.
  10. Use Restrictions. You shall not, and shall not permit any Authorized Users to, use the Service, any software component of the Service, or Documentation for any purposes beyond the scope of the access granted in these Terms. You shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative work, in whole or in part, of the Service (including any software component of the Service) or Documentation; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service (including any software component of the Service) or any Documentation except as expressly permitted under these Terms; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part; (iv) use the  Service (including any software component of the Service) in order to build a competitive product or service; (v) copy any features, functions or graphics of the Service (including any software component of the Service); (vi) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (vii) remove any proprietary notices from the Service or Documentation; or (viii) use the Service (including any software component of the Service) or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.  If the restriction set forth in clause (iii) above is prohibited by applicable law, you shall provide Kinetic with detailed prior written notice of any such intention to reverse engineer the Service and shall provide Kinetic with a right of first refusal to perform such work at rates equal to those proposed by a recognized third-party software services Kinetic for such work.
  11. Fees and Payment. You shall pay Kinetic the fees as described in the applicable Order Form ("Fees") on the dates indicated therein.  All annual subscription fees shall be paid in advance of the subscription period to which such payment relates. You shall make all payments hereunder in US dollars on or before the due date. If you fail to make any payment when due, without limiting Kinetic's other rights and remedies: (i) Kinetic may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) you shall reimburse Kinetic for all reasonable costs incurred by Kinetic in collecting any late payments or interest, including attorn, court costs, and collection agency fees. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on Kinetic's income.
  12. Reservation of Rights. Kinetic reserves all rights not expressly granted to you in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Kinetic IP.
  13. Third-Party Components. The Service may contain or otherwise make use of software, code or related materials from third parties, including, without limitation, “open source” or “freeware” software (“Third-Party Components”). Third Party Components may be licensed under additional or other license terms that accompany such Third-Party Components. You acknowledge and agree that these accompanying license terms govern their use. Nothing in this Terms limits your rights under, or grants you rights that supersede, the license terms that accompany any Third-Party Components. Kinetic shall: (a) pass through to you any warranty or other rights it receives for any Third-Party Components; and (b) reasonably cooperate with you in enforcing such rights, at your expense.
  14. Confidential Information. From time to time, Kinetic and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under these Terms. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under these Terms, including to make required court filings. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
  15. Term.  Unless earlier terminated in accordance with Section 16 below, the term of these Terms shall commence upon access to the Service and continue for twelve (12) months thereafter, unless a multi-year, or other, agreement is otherwise agreed upon in the Order Form (“Initial Subscription Term”). The Agreement shall automatically renew, at the then-current and then-applicable subscription price (each a “Renewal Subscription Term”) upon the end of the Initial Subscription Term and each Renewal Subscription Term for the same period of time as the prior term, unless either party delivers written notice of non-renewal to the other party at least sixty (60) days prior to the end of the then-current Initial Subscription Term or Renewal Subscription Term, or as otherwise agreed. The Initial Subscription Term and any Renewal Subscription Term shall be referred to as the “Subscription Term”.
  16. Termination.  Notwithstanding anything contained herein to the contrary, these Terms may be terminated: (a) by mutual agreement of Kinetic and you, (b) by either party if the other party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty (60) days of such filing, (c) by either party if the other party materially breaches this Agreement and fails to cure such breach to such party’s reasonable satisfaction within thirty (30) days following receipt of written notice thereof; or (d) by Kinetic immediately by delivery of written notice thereof to you if you violate the use restrictions set forth in Section 10.  Termination shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve you of your obligation to pay all fees that have accrued or become payable hereunder. Any right, obligation, or required performance of the parties in these Terms which, by its express terms or nature and context is intended to survive termination of these Terms, will survive any such termination.
  17. Intellectual Property Ownership; Feedback. As between you and us, (a) we own all right, title, and interest, including all Intellectual Property Rights, in and to the Service, the Kinetic IP, and any improvements, enhancements or modifications thereto or derivative works thereof; and (b) you own all right, title, and interest, including all intellectual property rights, in and to Customer Data. 
  18. Improvements.  Except as set forth in the last sentence of this Section 8, all developments, improvements and modifications to Service and their use, and all Intellectual Property Rights and proprietary rights arising therefrom, conceived or made by or on behalf of you (collectively, “Improvements”) will be for the sole benefit of Kinetic and will be treated as Kinetic’s Confidential Information hereunder.  You hereby assign, and, to the extent any such assignment cannot be made at the present time agrees to assign, to Kinetic all right, title and interest in and to the Improvements.  Upon request, you will promptly disclose in writing to Kinetic all Improvements, and will use commercially reasonable efforts to cooperate in obtaining, maintaining, defending and enforcing all Intellectual Property Rights and proprietary rights arising therefrom.  
  19. Feedback.  It is expressly understood, acknowledged and agreed that you may provide to Kinetic reasonable suggestions, comments and feedback regarding the Kinetic Technology, including but not limited to usability, bug reports and test results (collectively, “Feedback”). If you provides such Feedback to Kinetic, you shall grant Kinetic a worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up right to: (a)   make, use, copy, modify, sell, distribute, sub-license, and create derivative works of, the Feedback as part of any Kinetic product, technology, service, specification or other documentation (collectively,  “Kinetic Product"); and (b) publicly perform or display, import, broadcast, transmit, distribute, license, offer to sell, and sell, rent, lease or lend copies of the Feedback (and derivative works thereof) as part of any Kinetic Product. 
  20. Indemnification. 
    1. Kinetic Indemnification. 
      1. Kinetic shall indemnify, defend, and hold you harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by you resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Service, or any use of the Service in accordance with these Terms, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that you promptly notify Kinetic in writing of the Third-Party Claim, cooperate with Kinetic, and allow Kinetic sole authority to control the defense and settlement of such Third-Party Claim.
      2. If such a Third-Party Claim is made or Kinetic anticipates such a Third-Party Claim will be made, you agree to permit Kinetic, at Kinetic's sole discretion, to (A) modify or replace the Service, or any component or part thereof, to make it non-infringing, or (B) obtain the right for you to continue use the Service, as the case may be. If Kinetic determines that neither alternative is reasonably available, Kinetic may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to you and Kinetic shall refund the amounts (a) you prepaid for use of the Service, or (ii) paid for the affected component or part. This Section 20(a)(ii) sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Service infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. 
      3. This Section 20 (a) will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
    2. Customer Indemnification. You shall indemnify, hold harmless, and, at Kinetic's option, defend Kinetic and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party's intellectual property rights; or (ii) based on your or any Authorized User's negligence or willful misconduct or use of the Service in a manner not authorized by these Terms; provided that you may not settle any Third-Party Claim against Kinetic unless Kinetic consents to such settlement, and further provided that Kinetic will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
  21. Limitations of Liability. IN NO EVENT WILL KINETIC BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER KINETIC WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL KINETIC'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED TWO THOUSAND DOLLARS ($2,000.00).
  22. Modification. You acknowledge and agree that we have the right, in our sole discretion, to modify these Terms from time to time, and that modified terms become effective on posting. You will be notified of modifications through notifications or posts on our website.   You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Service after the effective date of the modifications will be deemed acceptance of the modified terms. 
  23. Export Regulation. The Service utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Service, the software or technology included in the Service to, or make the Service, the software or technology included in the Service accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service, the software or technology included in the Service available outside the US.
  24. Governing Law and Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.  Any legal suit, action, or proceeding arising out of or related to these Terms or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. 
  25. Force Majeure.  Kinetic is not liable for delay in the performance of its duties, obligations or responsibilities hereunder due to force majeure. A force majeure impediment is an unforeseen event which occurs after acceptance of orders, and which is beyond Kinetic’s reasonable control, such as strikes, blockade, war, mobilization, pandemic, epidemic, natural disaster, refusal of license by government or other stipulations or restrictions by the authorities, Internet service failures, delays or availability issues (including downtime or service outages) or any other similar or dissimilar cause beyond the control of Kinetic. Notwithstanding the foregoing, a force majeure does not extinguish your obligations to pay the applicable Fees hereunder.
  26. Miscellaneous. These Terms constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The terms of any purchase order or other document relating to the transactions contemplated by these Terms or delivered by you to Kinetic shall not apply.  Any notices to us must be sent to our corporate headquarters address set forth in the preamble to these Terms and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Service. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. These Terms is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign these Terms and to delegate any of its obligations hereunder.