Terms and Conditions
Last updated: February 18, 2021
KLOUDIO TERMS OF SERVICE AGREEMENT
This Kloudio Terms of Service Agreement (“Agreement”) governs Customer’s license and use of Kloudio programs, documentation and support provided by Kloudio pursuant to a paid subscription. This agreement does not apply to any license or use of a Kloudio program on a beta, free or trial basis. By clicking a box indicating acceptance of this agreement, Customer agrees to all of the terms and conditions set forth below. If the individual accepting this agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to this agreement, in which case the term “Customer” shall refer to such entity and its affiliates.
As used in this Agreement, the following terms shall have the meanings set forth below:
1.1 “License Term” means the term of the license for the Program set forth in the Order, or if not set forth in the Order, twelve (12) months.
1.2 “Order” means the online electronic order accepted by Customer specifying, among other things, the applicable Program, Support and Fees.
1.3 “Program” is the object code version of the Kloudio software product(s) specified in the Order together with all data files, technical data, specifications, Documentation and including any periodic releases, modifications, patches, fixes, versions and/or updates to the Program made available by Kloudio to Customer in accordance with the terms of this Agreement.
1.4 “Support” means technical support provided to Customer and consisting of ongoing Program maintenance, functionality updates, and online or telephone support, as set forth in this Agreement.
1.5 “Support Term” means the term of Support specified in the Order. If no term of Support is specified in the Order, the term of Support shall be coexistent with the License Term.
2.1 License Grant. Subject to the terms and conditions of this Agreement, including Kloudio’s receipt of all applicable Fees when due, during the License Term, Kloudio grants Customer a limited, non-exclusive, nontransferable, royalty-free, license during the Term to access and use the Program and technical documentation and any instructions associated with the Program made available by Kloudio to Customer (“Documentation”) for Customer’s internal use in accordance with the licensing restrictions set forth in this Agreement and the Order (the “License”). If Customer has licensed a Program for local installation, Kloudio grants Customer the right to (a) install one copy of the Program on Customer’s system, and (b) make one (1) non-production copy of the as reasonably necessary for back-up, quality assurance, development, and archival purposes. For its own internal use, Customer may make a reasonable number of copies of the Documentation.
2.2 License Restrictions. Customer shall not, and shall not allow any third party to, without Kloudio’s prior written consent: (a) translate, interpret, decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, algorithms or underlying ideas incorporated in the Program or Documentation; (b) remove any product identification, copyright, trademark or other proprietary notices from the Program or Documentation; (c) provide, lease, lend, use for timesharing or service bureau purposes or allow others to use the Program or Documentation to or for the benefit of third parties; (d) modify, incorporate into or create a derivative work of any part of the Program or Documentation; or (e) access or use the Program for purposes of monitoring its availability, performance or functionality, or for any benchmarking or competitive purposes.
2.3 Title and Ownership. Customer acknowledges and agrees that all tangible and intangible intellectual property embodied in or used in connection with the Kloudio Program and/or Documentation provided to Customer pursuant to this Agreement, is exclusively owned by and reserved to Kloudio and Kloudio will retain all right, title and interest in the Intellectual Property. All derivative works, improvements, modifications, adaptations, alterations or additions to the Program created, or developed shall be the sole and absolute property of Kloudio for all purposes unless otherwise agreed in writing by Kloudio. The License does not constitute a sale or transfer of any ownership interest in the Program, Documentation or any portion or any copy or reproduction thereof, but merely constitutes a limited right to access and use the licensed Program and use the Documentation during the Term subject to the terms and conditions of this Agreement.
3. Fees and Payment
3.1 License Fees; Support Fees; Late Fees; Payments. Customer shall pay fees for licensed use of the Program (“License Fees”) and fees for Support (if applicable) (“Support Fees”, and collectively with License Fees, the “Fees”) in the amounts specified in the Order. All payments due hereunder shall be made within thirty (30) days following Customer’s receipt of an invoice. Fees for any renewal of a License and/or Support shall be in such amounts as may be in effect at the time of the renewal. Customer agrees to pay late payment charges of 1.5% per month or, if lower, the maximum rate allowed under applicable law, on any balance that has not been paid within thirty (30) days of Customer’s receipt of the applicable invoice. Customer will reimburse Kloudio for all costs incurred (including reasonable attorneys’ fees) in collecting any delinquent amounts. All amounts due under this Agreement are denominated in U.S. dollars and Customer shall pay Kloudio in U.S. dollars. All payment obligations are non-cancelable and, except as otherwise provided in the Agreement, all Fees paid under this Agreement are nonrefundable.
3.2 Taxes. Customer agrees to pay all taxes levied by a duly constituted taxing authority against all amounts paid or payable to Kloudio hereunder (exclusive, however, of taxes based on Kloudio’s income) regardless of whether such taxes become due or payable at the time of delivery or use of the Program or Support or subsequent thereto. Customer agrees to pay any tax for which it is responsible hereunder, which may be levied on or assessed against Customer directly, and, if any such tax is paid by Kloudio, to reimburse Kloudio therefore, upon receipt of proof of payment reasonably acceptable to Customer. Customer agrees to indemnify, defend and hold Kloudio harmless with respect to all taxes or duties which any federal, state or local taxing authority requires Kloudio to pay on behalf of Customer.
Subject to payment of any applicable Support Fees specified in the Order, Kloudio shall support the Program in accordance with the terms of this Agreement. Kloudio reserves the right to modify or update any support policies, procedures, or provisions provided that such changes do not materially and adversely affect the Support levels provided to Customer under the original policy. Support commences on the date of the Order and continues through the Support Term. Support will be automatically renewed for successive terms equal in length to the original Support Term unless Customer provides at least ninety (90) days’ notice prior to the expiration of the then-current Support Term. Kloudio shall have no obligation to Support the Program: (a) for use on any computer system running on an operating system software not authorized by Kloudio; or (b) if Customer, or a third party acting on Customer’s behalf, makes any unauthorized modification to the Program.
In support of the licensed Kloudio Program, Kloudio will respond to service-related incidents and/or requests submitted by Customer within the following time frames:
|Priority||Description & Examples||Response SLA||Resolution SLA|
|Urgent||Critical/Outage issue, affecting all users including system unavailability and data integrity issues with no workaround available.||Respond within 4 business hours||Resolve within 1 business day|
|High||Sub-par performance of products affecting many users. System is running slowly or certain non-mission critical functionality isn't working.||Respond within 1 business day||Resolve within 2 business days|
|Medium||System performance issue or bug affecting some but not all users. Short term workaround is available but not scalable. Also includes time sensitive requests such as requests for feature activation.||Respond within 2 business days||Resolve within 7 business days|
|Low||Long term feature requests and issues for which a good workaround is available.||Respond within 5 business days||ETA/Resolution within 1 month|
Customer agrees to defend and indemnify Kloudio from and against any third-party claims, actions, damages and liabilities (each a “Claim”) to the extent resulting from (a) Customer’s access to or use of any Program, (b) any breach or alleged breach by Customer of any representation, warranty, or covenant of this Agreement, and (c) any information, content or materials submitted by Customer to Kloudio or to or through a Program. Customer may not settle any Claim without Kloudio’s prior written consent if the settlement would require Kloudio to admit fault, pay amounts that Customer must pay under this Agreement, or take or refrain from taking any action. Kloudio may participate in a Claim through counsel of its own choosing at its own expense and Customer and Kloudio will reasonably cooperate in the defense of any Claim.
6. WARRANTY DISCLAIMER
KLOUDIO DOES NOT WARRANT THAT THE PROGRAM OR ANY SUPPORT WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PROGRAM. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE PROGRAM AND DOCUMENTATION ARE PROVIDED “AS IS” AND KLOUDIO EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND ACCURACY. KLOUDIO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PROGRAM. KLOUDIO DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE PROGRAM IS ACCURATE OR COMPLETE OR WILL ALWAYS BE AVAILABLE. IN ADDITION, CUSTOMER ACKNOWLEDGES THAT KLOUDIO DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE PROGRAM AND SUPPORT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. KLOUDIO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
7. LIMITATION OF LIABILITY
NO EVENT SHALL KLOUDIO, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR (A) 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 ANY LOSS OF BUSINESS, ANY LOSS OF REVENUE OR LOST PROFITS, OR (B) ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL KLOUDIO’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON WARRANTY, CONTRACT, TORT, (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO KLOUDIO DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
8. Term and Termination
8.1 Agreement Term; License Term; Automatic Renewal. This Agreement is effective as of the Effective Date and shall continue in effect until the end of the License Term unless otherwise terminated in accordance with this Section 8. The term of each License shall be as specified in the Order. Except as otherwise specified in the Order, a License will automatically renew for additional periods equal to the expiring License Term, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the then-current License Term.
8.2 Material Breach. Either party may terminate this Agreement with written notice provided in accordance with Section 9.7 upon any other material breach of this Agreement by the other party, which if remediable, has not been cured within thirty (30) calendar days after the breaching party’s receipt of written notice describing the breach in reasonable detail. Notwithstanding the foregoing, Kloudio may terminate this Agreement, terminate or suspend Customer’s access to the Program or withhold Support of the Program if Customer fails to make any payment when due to Kloudio and such failure is not cured within five (5) business days following Customer’s receipt of written notice that payment is past due.
8.3 Effect of Termination. As of the termination date, any Support shall immediately cease, all Licenses granted hereunder shall terminate, and Customer shall cease all use of the Program and applicable Documentation and all portions thereof. Customer shall certify compliance with this Section 8.3 in writing to Kloudio within thirty (30) days of the effective date of termination. Termination shall not relieve Customer from paying all fees accruing prior to termination and shall not limit either party from pursuing any other available remedies. Obligations and rights that, by their nature, are intended to survive cancellation, termination or expiration of this Agreement shall so survive, including (for the avoidance of doubt but without limitation), Sections 1, 2.3, 3 and 5-9.
9.1 No Assignment; No Third-Party Beneficiary. Neither this Agreement nor any License hereunder may be assigned (whether by operation of law or otherwise) by Customer without Kloudio’s prior written consent. No provision of this Agreement is intended nor shall be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any other person or entity under this Agreement.
9.2 Entire Agreement. This Agreement is the entire agreement of the parties and supersedes all previous and contemporaneous communications, representations, or agreements regarding the subject matter hereof with the exception of any earlier or contemporaneous non-disclosure or confidentiality agreements. If there is a conflict between any term of this Agreement and a term of the Order, the conflicting term of the Order shall govern.
9.3 Export Control. Customer shall not transfer, directly or indirectly, any restricted Programs or technical data received from Kloudio or the direct product of such data, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from Kloudio and the appropriate United States agency.
9.4 Force Majeure. No delay or default in performance of any obligation by either party, excepting all obligations to make payments, shall constitute a breach of this Agreement to the extent caused events outside the control of either party, including, but not limited to, acts of God, disputes or industrial disturbances, electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
9.5 Controlling Law; Venue; Attorneys’ Fees. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to any choice of law or conflict of law provisions. The state and federal courts located in San Jose, California shall be the exclusive venue for, and have exclusive venue jurisdiction over the parties hereto, with respect to any matter arising out of or relating to this Agreement, and the parties hereby submit to such courts’ jurisdiction over the parties with respect to any matter arising out of or relating to this Agreement. Each party hereto irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the jurisdiction and laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. The Parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Agreement and the Uniform Information Computer Transactions Act (UCITA), as they may be adopted by the state of California. The prevailing party in any action (including arbitration), brought against the other to enforce the terms of this Agreement or any rights or obligations hereunder, shall be entitled to reimbursement of its reasonable attorneys’ fees and costs.
9.6 Non-Waiver and Severability. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude future exercise of any other right or power hereunder. In the event that any provision of this Agreement conflicts with the law under which this Agreement is to be construed or if any such provision is held illegal, invalid or unenforceable by a court of competent jurisdiction (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.
9.7 Notice. Any notice, report, approval or consent required or permitted hereunder shall be delivered in writing, or mailed by registered or certified U.S. mail, postage prepaid or reputable overnight carrier (e.g. Federal Express) to the address set forth below, or to such other address or such other person that such party may designate from time to time in accordance with this Section 9.7, and shall be deemed given upon receipt. Notices shall be given at the addresses set forth in the first paragraph of this Agreement, or such other address as a party provides to the other party in compliance with this notice provision.
9.8 Relationship of the Parties. The parties are independent contractors, and nothing in this Agreement creates an agency, partnership, or joint venture.
9.9 Changes to this Agreement. We reserve the right, in our sole discretion, to change the terms of this Agreement on a going-forward basis at any time. If any changes materially modify your rights or obligations, we will provide advance notice of such changes and require you to provide consent by accepting the Agreement as revised. If we require your acceptance of the changed Agreements, changes are effective only after your acceptance. In the event that a change to this Agreement does not materially modify your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Program, by sending an email to any email address you have provided to us, or through other reasonable means. These changes are effective upon publication of the changed Agreement.
2 North 1st Street; 5th Floor
San Jose, CA 95113