Kalepa Master Subscription Agreement
Effective: April 1st, 2023
THIS AGREEMENT IS A BINDING CONTRACT AND GOVERNS THE USE OF AND ACCESS TO THE SERVICES BY YOU AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION OR FREE TRIAL FOR THE SERVICES.
By accepting this Agreement, either by accessing or using the Services, or authorizing or permitting any End-User to access or use the Services, You agree to be bound by this Agreement as of the date of such accessor use of the Services (the “Effective Date”). If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Kalepa that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Customer,” “You,” or “Your” herein refers to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not use or authorize any use of the Services. Customer and Kalepa shall each be referred to as a “Party” and collectively referred to as the “Parties” for purposes of this Agreement. Kalepa may modify this Agreement from time to time, subject to the terms in Section 13 (Changes to this Agreement) below.
1. Overview
The purpose of this Agreement is to establish the terms and conditions under which Customer obtains Kalepa’s Services as described in a Service Order, Statement of Work or other document signed or agreed to by You (any or all of which constitute the “Documentation”).
In the event of any inconsistency or conflict between the terms of the Master Subscription Agreement and the terms of any Service Order or Statement of Work, the terms of the Service Order or Statement of Work shall control.
2. Services
2.1. Access to Services
2.1.1. Subject to the terms of this Agreement, Kalepa will use commercially reasonable efforts to provide You the Services described in the Documentation.
2.1.2. Subject to Your compliance with this Agreement(including, without limitation, all payment obligations), Kalepa hereby grants to You a limited, revocable, non-exclusive, non-transferable, and non-sublicensable (except to Affiliates) right, to access and use the Services. If You are agreeing to this Agreement on behalf of an Entity, such Entity’s Affiliates may also access and use the Services provided that such Affiliates agree to be bound by the terms of this Agreement, and the Entity remains fully liable for such Affiliates’ actions and omissions in connection with this Agreement as if the Entity had performed such acts and omissions itself. “Affiliate” means any entity which, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a Party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
2.2. Restrictions
2.2.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software.
2.2.2. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the Documentation and this Agreement, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Kalepa against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Kalepa has no obligation to monitor Customer’s use of the Services, Kalepa may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3. Credentials
You are responsible for maintaining the confidentiality of all usernames, passwords, and other access credentials (such as API tokens and OAuth credentials) created by or assigned to You (“Credentials”) and are solely responsible for all activities that occur with such Credentials.
If You permit third parties to access Your Kalepa account(e.g., by providing Your API token or using OAuth), You do so at Your sole risk and Kalepa will not be directly or indirectly responsible or liable to You in any manner, for any harms, damages, loss, lost profits, special or consequential damages, or claims, arising out of or in connection with such permission. You acknowledge that by permitting a third party to access Your Kalepa account, the third party may obtain, modify, or delete Your account data and settings.
You agree to notify Kalepa promptly of any actual or suspected unauthorized use of any Credentials. Kalepa reserves the right to terminate any Credentials that Kalepa reasonably determines may have been accessed or used by an unauthorized third party and will provide immediate notice of such to You.
3. Confidentiality and Data Security
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Kalepa includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Kalepa to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:(i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or(e) is required to be disclosed by law.
3.2. Notwithstanding anything to the contrary, Kalepa shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies and Kalepa will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Kalepa offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.3. Kalepa implements security procedures to help protect Customer Data from security threats. However, You understand that Your use of the Service necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by Kalepa, and Kalepa is not responsible for any of Customer Data that is lost, altered, intercepted or stored across such networks.
4. Term and Termination
Services that are provided to You as Paid Services may be provided to You on a subscription basis for the length of term specified in the Documentation or Your first use (“Subscription Term”). Your subscriptions to Paid Services with a Subscription Term will automatically renew for periods equal to Your initial Subscription Term, and You will be charged at Kalepa’s then-current rates unless You cancel Your subscription through the Services’ account dashboard, as available, or by emailing self-serve@kalepa.com prior to Your next scheduled billing date.
Kalepa reserves the right to investigate violations of this Agreement. Kalepa may at its sole discretion terminate Your user account or suspend or terminate Your access to the Service at any time, with or without notice for any reason or no reason at all. Kalepa also reserves the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to You. Kalepa will have no liability whatsoever on account of any change to the Service or any suspension or termination of Your access to or use of the Service. You may terminate Your account at any time through the Service’s account dashboard, as available, or by emailing support@kalepa.com.
5. Free, Trial , and Beta Services
5.1. Kalepa may offer free or trial versions of the Services (“Free Services”) from time to time. With respect to each such Free Service, Kalepa will make each such Free Service available to You free of charge until the earlier of (a) the end of the free trial period (if applicable) for which You registered to use the Free Service; (b) the start date of Your Subscription Term for the Paid Services version of such Free Service; or (c) termination of the Free Service by Kalepa at its sole discretion. Kalepa will have no liability for any harm or damage arising out of or in connection with any Free Services.
5.2. From time to time, Kalepa may make non-production Services(“Beta Services”) that are under development available to You. You may access these Beta Services at Your sole discretion. Beta Services are intended for testing purposes only, and may be subject to additional terms that will be presented to You at the time of sign-up or first use. Kalepa is not obligated to provide You with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Beta Services testing period will expire upon the earlier of one year from the testing start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Kalepa may discontinue, suspend, or remove Beta Services (including any of Customer Content stored as part of the Beta Services) or Your access thereto at any time at Kalepa’s sole discretion and may never make them generally available. In the event that a version of a Beta Service becomes generally available without the applicable Beta Service designation, You may be permitted to continue using the generally available Services subject to applicable terms as provided in the Agreement. You understand that any information You obtain regarding Beta Services constitutes Proprietary Information of Kalepa as protected in Section3.1 of this Agreement. Notwithstanding Section 10 of this Agreement, Kalepa will have no liability for any harm or damage arising out of or in connection with any Beta Services.
6. Billing
6.1. Invoicing
Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income.
6.2. Price Changes
Kalepa reserves the right to change the fees that it charges for the Service, at any time at its sole discretion, provided that Kalepa gives You at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to You, any changes to the subscription fees will take effect in the billing period immediately following Kalepa’s notice to You.
6.3. No Refunds
FEES ARE NONREFUNDABLE. YOU WILL BE BILLED IN FULL FOR THE SUBSCRIPTION TERM IN WHICH YOU CANCEL, AND NO REFUNDS WILL BE PROVIDED FOR THE UNUSED PORTION OF SUCHSUBSCRIPTION TERM. Following any cancellation, however, You will continue to have access to the Paid Services through the end of Your current Subscription Term. Kalepa may, at its sole discretion, provide a refund, discount, or credit (“Credits”) to You in a specific instance, however the provision of Credits in a specific instance does not entitle You to Credits in the future for similar instances or obligate Kalepa to provide additional Credits.
6.4. Taxes
Unless otherwise stated, Kalepa’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against Kalepa as measured by its net income. Unless You provide Kalepa with evidence of an exemption, Kalepa will invoice You for such Taxes if it believes it has a legal obligation to do so and You agree to pay such Taxes if so invoiced.
7. Warranty and Disclaimer
Kalepa shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Kalepa or by third-party providers, or because of other causes beyond Kalepa’s reasonable control, but Kalepa shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Kalepa does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND KALEPA DISCLAIMS ALL WARRANTIES, EXPRESS ORIMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITYAND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. Ownership and Proprietary Rights
The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by Kalepa are protected by all relevant intellectual property and proprietary rights and applicable laws, and are furthermore Proprietary Information as described in Section 3.1 of this Agreement. All Materials contained in the Service are the property of Kalepa or its third-party licensors. Except as expressly authorized by Kalepa, You may not make use of the Materials. Kalepa reserves all rights to the Materials not granted expressly in this Agreement.
You hereby grant Kalepa a non-exclusive, royalty-free, worldwide, transferable, irrevocable, sublicensable, and perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations, corrections, or other feedback (“Feedback”) You provide to Kalepa relating to the Services.
9. Indemnity
Kalepa shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Kalepa is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Kalepa will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Kalepa, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Kalepa, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Kalepa to be infringing, Kalepa may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
10. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, KALEPA AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALLEQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OFBUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND KALEPA’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO KALEPA FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT KALEPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Kalepa’s prior written consent. Kalepa may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Kalepa in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. You agree to the disclosure of Your Company’s use of the software and to reasonably cooperate with Company to serve as a reference account upon request.
12. Changes to this Agreement
Kalepa reserves the right to make modifications to this Agreement at any time. If a revision materially alters Your rights, Kalepa will use reasonable efforts to contact You, including sending a notification to the e-mail address(es) associated with your account. In some instances, such as with Free Services, You may be required to indicate Your consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement will take effect at the start of Subscription Term following the notice. If You do not agree with the revised terms, Your sole and exclusive remedy will be not to renew Your Subscription.
