Klu.ai Master Subscription Agreement - Platform Terms of Service

DEFINITIONS.

"Authorized User" means each of Customer's employees who are authorized to access the Klu.ai Platform pursuant to the rights granted to Customer under this Agreement.

"Customer Content" means any content, data, documents, instructions, and information provided or submitted by, or on behalf of, Customer or its Authorized Users to the Klu.ai Platform.

"Customer Result(s)" means results made available to Customer as output from its use of the Klu.ai Platform.

"Documentation" means the technical materials provided by Klu, Inc. to Customer in hard copy or electronic form describing the use and operation of the Klu.ai Platform.

"Klu.ai Platform" means the Klu, Inc software-as-a-service application identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface.

"Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

"Order Form" means an order form that is signed by both parties and references these Terms and Conditions.

PROVISION OF Klu.ai Platform.

1. Access.

Subject to Customer's payment of the fees set forth in the Order Form ("Fees"), Klu, Inc will provide Customer with access to the Klu.ai Platform. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Klu.ai Platform, and notify Klu, Inc promptly of any such unauthorized use known to Customer.

2. Support Klu.ai Platform.

Subject to the terms and conditions of this Agreement, Klu, Inc will exercise commercially reasonable efforts to (a) provide support for the use of the Klu.ai Platform to Customer, and (b) keep the Klu.ai Platform operational and available to Customer, in each case in accordance with its standard policies and procedures.

3. License Grant.

Subject to the terms and conditions of this Agreement, Klu, Inc grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11.5 (No Assignment)) license during the Term (as defined below), solely for Customer's internal business purposes and in accordance with the limitations (if any) set forth in the Order Form to access and use the Klu.ai Platform. Customer may permit any Authorized Users to access and use the features and functions of the Klu.ai Platform as contemplated by this Agreement; provided that Customer will be responsible for all acts and omission of its Authorized Users.

4. Restrictions.

Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Klu.ai Platform or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Klu.ai Platform or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Klu.ai Platform or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Klu.ai Platform, except as permitted by law; (e) interfere in any manner with the operation of the Klu.ai Platform or the hardware and network used to operate the Klu.ai Platform; (f) modify, copy or make derivative works based on any part of the Klu.ai Platform or Documentation; (g) access or use the Klu.ai Platform to build a similar or competitive product or service; (h) attempt to access the Klu.ai Platform through any unapproved interface; or (i) otherwise use the Klu.ai Platform or Documentation in any manner that exceeds the scope of use permitted under Section 2.3 (License Grant) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the Klu.ai Platform will not be used, and are not licensed for use, in connection with any of Customer's time-critical or mission-critical functions. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Klu, Inc or its licensors on the Klu.ai Platform, Customer Results or otherwise.

INTELLECTUAL PROPERTY.

Ownership.

The Klu.ai Platform and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Klu, Inc and its suppliers. All rights in and to the Klu.ai Platform and Documentation not expressly granted to Customer in this Agreement are reserved by Klu, Inc and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Klu.ai Platform, Documentation, or any part thereof.

License to Documentation.

Subject to the terms and conditions of this Agreement, Klu, Inc grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable (except as permitted under Section 11.5 (No Assignment)), non-sublicensable license to use the Documentation solely for Customer's internal business purposes in connection with its access and use of the Klu.ai Platform.

Open Source Software.

Certain items of software may be provided to Customer with the Klu.ai Platform and are subject to third party or "open source" or "free software" licenses ("Open Source Software"). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 (Ownership) or 9 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer's rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Klu, Inc makes such Open Source Software, and Klu, Inc's modifications to that Open Source Software, available by written request at the notice address specified below.

Feedback.

Customer hereby grants to Klu, Inc a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Klu.ai Platform any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Klu.ai Platform. Klu, Inc will not identify Customer as the source of any such feedback.

FEES.

Fees.

In consideration for the access rights granted to Customer and the Klu.ai Platform performed by Klu, Inc under this Agreement, Customer will pay to Klu, Inc the Fees. Except as otherwise provided in the Order Form, all Fees are billed at the end of each month of the Term and due and payable within thirty (30) days of the date of the invoice. Klu, Inc reserves the right (in addition to any other rights or remedies Klu, Inc may have) to discontinue the Klu.ai Platform and suspend all Authorized Users' and Customer's access to the Klu.ai Platform if any Fees are overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times.

Taxes.

The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Klu, Inc's income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Klu.ai Platform, or the license of the Klu.ai Platform to Customer. Customer will make all payments of Fees to Klu, Inc free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Klu, Inc will be Customer's sole responsibility, and Customer will provide Klu, Inc with official receipts issued by the appropriate taxing authority, or such other evidence as the Klu, Inc may reasonably request, to establish that such taxes have been paid.

Interest.

Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

CUSTOMER CONTENT AND RESPONSIBILITIES.

License.

Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Klu, Inc to use the Customer Content to provide the Klu.ai Platform. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Klu, Inc to use the Customer Content submitted by or on behalf of its clients for the purposes set forth in this Agreement. Customer grants Klu, Inc a non-exclusive, worldwide, irrevocable, royalty-free and fully paid license during the Term (a) to use the Customer Content as necessary for purposes of providing and improving the Klu.ai Platform, (b) to use the Customer trademarks, service marks, and logos as required to provide the Klu.ai Platform, and on a perpetual basis to (c) use the Customer Content in an aggregated and anonymized form to: (i) improve the Klu.ai Platform and Klu, Inc's related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Klu.ai Platform, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer's consent. The Customer Content, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to Klu, Inc in this Agreement are reserved by Customer.

Customer Warranty.

Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Klu, Inc's system or data; and (e) otherwise violate the rights of a third party. Klu, Inc is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer's sole cost and expense. Customer agrees that any use of the Klu.ai Platform contrary to or in violation of the representations and warranties of Customer in this Section 5.2 (Customer Warranty) constitutes unauthorized and improper use of the Klu.ai Platform.

WARRANTIES AND DISCLAIMERS.

Limited Warranty.

Klu, Inc represents and warrants that it will provide the Klu.ai Platform and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies Klu, Inc in writing of the breach within thirty (30) days following performance of the defective Klu.ai Platform, specifying the breach in reasonable detail, Klu, Inc will, as Customer's sole and exclusive remedy, for any breach of the foregoing, re-perform the Klu.ai Platform which gave rise to the breach or, at Klu, Inc's option, refund the fees paid by Customer for the Klu.ai Platform which gave rise to the breach.

Disclaimer.

THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 (LIMITED WARRANTY) IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6 (WARRANTIES AND DISCLAIMERS), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Klu.ai Platform, CUSTOMER RESULTS AND DOCUMENTATION ARE PROVIDED "AS IS," AND Klu, Inc MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Klu, Inc DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE Klu, Inc SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.

YOU ACKNOWLEDGE AND AGREE THAT THE SERVICE IS NOT A SUBSTITUTE FOR PROFESSIONAL PRODUCT MANAGEMENT AND THAT YOU SHOULD REVIEW ALL OUTPUTS CAREFULLY BEFORE RELYING ON OR ACTING UPON ANY INFORMATION OR OUTPUT GENERATED BY THE SERVICE.

LIMITATION OF LIABILITY.

Types of Damages.

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

Amount of Damages.

THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO Klu, Inc DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL Klu, Inc'S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY'S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.

Basis of the Bargain.

The parties agree that the limitations of liability set forth in this Section 7 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

CONFIDENTIALITY.

Confidential Information.

"Confidential Information" means any nonpublic information of a party (the "Disclosing Party"), whether disclosed orally or in written or digital media, that is identified as "confidential" or with a similar legend at the time of such disclosure or that the receiving party (the "Receiving Party") knows or should have known is the confidential or proprietary information of the Disclosing Party. The Klu.ai Platform, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Klu, Inc.

Protection of Confidential Information.

The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Klu, Inc). In addition, the Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party's request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.

Exceptions.

The confidentiality obligations set forth in Section 8.2 (Protection of Confidential Information) will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information; or (e) Klu, Inc's rights to use Customer Content in accordance with Section 5.1. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

INDEMNIFICATION.

By Klu, Inc.

Klu, Inc will defend at its expense any suit brought against Customer, and will pay any settlement Klu, Inc makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Klu Platform infringes such third party's patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Klu Platform becomes, or in Klu, Inc's opinion is likely to become, the subject of a claim of infringement, Klu, Inc may, at Klu, Inc's option: (a) procure for Customer the right to continue using the Klu Platform; (b) replace the Klu Platform with non-infringing software or services which do not materially impair the functionality of the Klu Platform; (c) modify the Klu Platform so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Klu Platform and Documentation. Notwithstanding the foregoing, Klu, Inc will have no obligation under this section or otherwise with respect to any infringement claim based upon (i) any use of the Klu Platform not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Klu Platform in combination with other products, equipment, software or data not supplied by Klu, Inc; or (iii) any modification of the Klu Platform by any person other than Klu, Inc or its authorized agents (collectively, the "Exclusions" and each, an "Exclusion"). This section states the sole and exclusive remedy of Customer and the entire liability of Klu, Inc, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

By Customer.

Customer will defend at its expense any suit brought against Klu, Inc, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to (a) an Exclusion, or (b) Customer's breach or alleged breach of Section 5.2 (Customer Warranty). This section states the sole and exclusive remedy of Klu, Inc and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.

Procedure.

The indemnifying party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

TERM AND TERMINATION.

Term.

This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement (the “Term”).

Termination for Breach.

Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.

Effect of Termination.

Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 8 (Confidentiality); and (c) any amounts owed to Klu, Inc under this Agreement will become immediately due and payable. Sections 1 (Definitions), 2.4 (Restrictions), 3.1 (Ownership), 3.3 (Open Source Software), 4 (Fees), 5.1 (License), 6.2 (Disclaimer), 7 (Limitation of Liability), 8 (Confidentiality), 9 (Indemnification), 10.2 (Termination for Breach), 10.3 (Effect of Termination), and 11 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.

MISCELLANEOUS.

Governing Law and Venue.

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Dover County, Delaware for any lawsuit filed there against Customer by Klu, Inc arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

Export.

Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Klu, Inc, or any products utilizing such data, in violation of the United States export laws or regulations.

Severability.

If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

Waiver.

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

No Assignment.

Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Klu Platform, Customer Results and Documentation.

Force Majeure.

Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

Independent Contractors.

Customer's relationship to Klu, Inc is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Klu, Inc.

Notices.

All notices required or permitted under this Agreement must be delivered in writing, if to Klu, Inc, by emailing admin at launchpad dot pm and if to Customer by emailing the email address listed on the Order Form. Each party may change its email address for receipt of notice by giving notice of such change to the other party.

Counterparts.

This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

Entire Agreement.

This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Klu, Inc.