Effective: March 17, 2021
These Terms of Service (“Terms”) govern your access and use of our online services (the “Services”), which term includes any services or other products or features made available by us to you on an unpaid trial or free basis (the “Free Services”). These Terms and any Order Form together form a binding “Contract” between Customer and us. “Customer” is the organization that you represent in agreeing to the Contract; “we,” “our,” and “us” refer to Ketch Kloud, Inc. You may purchase a subscription via an order form entered into between Customer and us (“Order Form”); in so doing, you agree to the then-current Contract on behalf of Customer. Free Services may be made available without an Order Form. Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Subscriptions commence when we make them available to Customer and continue for the term specified in the Order Form; fees are specified in the Order Form. The foregoing sentence does not apply to Free Services, which are described below.
We will make available the Services, or may make available the Free Services, in accordance with these Terms, the Documentation, and the Data Processing Addendum. All of our rights not expressly granted by these Terms are hereby retained.
Customer may make data, including personal data, available to the Services (“Customer Data”). Customer grants us a worldwide, limited-term license to host, copy, use, transmit, and display Customer Data or any Third-Party Apps created by or for Customer. Subject to the limited licenses granted herein, we acquire no right, title, or interest from Customer in or to any Customer Data.
Customer is responsible for the accuracy, quality, and legality of Customer Data, the means by which Customer acquired Customer Data, and its use of Customer Data with the Services or any Third-Party App. Customer will ensure that all necessary rights and permissions are established for the transfer and/or processing of Customer Data in connection with the Services or the applicable Third-Party App in compliance with all applicable laws, regulations, and self-regulatory requirements.
We will maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, including measures designed to prevent unauthorized access to or disclosure of Customer Data. Adherence to security best practices obliges us to provide end-user authentication, in addition to other technical measures, as required, where the end user (e.g., customer of Customer) will engage directly with the Services (including, e.g., via two-factor authentication, downloading, or logging-in to the Services), as further described in the Documentation. Customer will not attempt to use the Services, or ask us to configure the Services, in a manner inconsistent with these requirements.
Subject to the limited rights expressly granted herein, we reserve all of our right, title, and interest (including all intellectual property rights) in and to the Services, and, as between us and Customer, we own any data within or related to the Services that is not Customer Data.
In its use of the Services, Customer will comply with these Terms (including any usage limits specified in Order Forms), the Documentation, and all applicable laws and regulations. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services and notify us promptly of any such unauthorized access or use. Customer is responsible for its personnel’s and agents’ compliance with Customer’s obligations under these Terms.
Our Services offer Customer the ability to select and integrate applications that complement Customer’s use of the Services (each, a “Third-Party App”). These are not our services, so we do not warrant or support Third-Party Apps. Any use of Third-Party Apps is solely between Customer and the applicable provider. We are not responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Third-Party App.
The Contract remains effective until all subscriptions have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and Order Forms. Unless an Order Form says something different, all subscriptions automatically renew for additional periods equal to one (1) year. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a subscription term.
We or Customer may terminate the Contract on notice to the other party if the other party materially breaches the Contract and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. We may suspend the Services or terminate the Contract immediately on notice to Customer if we believe the Services are being used in violation of applicable law or in a way that may cause risk of litigation or otherwise be harmful to us. In no event will termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination. Following termination or expiration of subscriptions, we will have no obligation to maintain or provide any Customer Data.
Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Customer hereby acknowledges that usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that we may, in our sole discretion and for any or no reason, terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that we will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if we terminate Customer’s account, except as required by law we will provide Customer a reasonable opportunity to retrieve its Customer Data. We may change the limits that apply to Customer’s use of the Free Services at any time in our sole discretion without notice to Customer, regardless of whether or not these are used in conjunction with other products or services for which Customers pays us a fee. We may make changes to the Free Services that materially reduce the functionality provided to Customer.
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
OTHER THAN IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER CUSTOMER’S OR OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY 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. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Customer will defend us from and against any and all third-party claims, actions, suits, proceedings, and demands arising from or related to Customer’s violation of these Terms or of applicable law (a “Claim Against Us”), and will indemnify us for all reasonable attorney’s fees incurred and damages and other costs finally awarded against us in connection with or as a result of, and for amounts paid by us under a settlement Customer approves of in connection with, a Claim Against Us. We must provide Customer withprompt written notice of any Claim Against Us and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.
Customer grants us the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers.
This Agreement is governed by the laws of the State of California, without regard to conflicts of laws rules.