Aug 29, 2023
This Master SAAS Agreement, including the attached Schedules, which are hereby incorporated (this “Agreement”) is entered into on _____________ __, 2023 (the “Effective Date”) by and between Usable Machines, Inc. dba Kindo (“Kindo” “we,” “our,” or “us”), and ____________________ (“Customer” “you,” or “your”). Kindo and Customer may each be referred to individually as a “Party” and collectively as the “Parties.”
NOW, THEREFORE, for consideration of these promises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.2. “Applicable Law” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such Party or any of its properties, assets, or business operations.
1.3. “Authorized User” means Customer’s employees, contractors, or agents authorized by Customer to access and use the Products pursuant to the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Products will be limited to their provision of services to Customer. You are responsible for all acts and omissions of Authorized Users and any other person who accesses and uses the Products using any of your or any Authorized Users’ login credentials.
1.4. “Confidential Information” means: (i) with respect to Kindo, the Products, Additional Features, and any and all source code relating thereto, the Kindo Materials, the Usage Data, the Aggregate Data, the Documentation, pricing and fees related to the Products provided hereunder, and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to you, the Customer Data, Customer API, and any other non-public information or material regarding your legal or business affairs, financing, Authorized Users, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
1.5. “Customer API” means application programmable interface made available by Customer to allow Kindo to pull Customer Data from Customer’s systems to upload it to the applicable Product.
1.6. “Customer Data” means any data and information provided by Customer or its Authorized Users that is used by Kindo to create Prompts, Model Weights and Embeddings and perform Fine Tuning of the Product. For the avoidance of doubt, Customer Data does not include Feedback.
1.7. “Customer Materials” means Customer Data, and Prompts, Model Weights and Embeddings created by Kindo using Customer Data.
1.8. “Customer Private AI Model” means a Private AI Model that is trained with Customer Data.
1.9. “Customer Products” means Customer’s products and services that Customer owned prior to the Effective Date or that Customer has developed on its own without assistance or input from Kindo, that interoperate with the Private AI Model.
1.10. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Products as provided or made available by Kindo to Customer whether in a written or electronic form.
1.11. “Embeddings” means vectors or arrays of numbers that are derived from the Model Weights, and are used to encode and decode the Input and Output.
1.12. “End User” means end users of the Customer Products.
1.13. “Fees” means the fees set forth on the applicable Order Form.
1.14. “Fine Tuning” means training the pre-trained model to refine its parameters for a specific use case. For the avoidance of doubt, Fine Tuning may not apply to all Products.
1.15. “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Products, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Products to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Products.
1.16. “Input” means any and all information, content or data that you, your Authorized Users or End Users input to the Products for processing.
1.17. “Kindo API” means application programmable interface made available by Kindo on a standalone basis or in order to allow Customer to access and use the Products.
1.18. “Kindo Materials” means Prompts, Embeddings and Model Weights that are created by Kindo independent of the Customer Data and used to perform Fine Tuning of the Product.
1.19. “Kindo Platform” means Kindo proprietary core platform of AI powered workflows and enterprise search and/or chat that is described on the Order Form, any Additional Features, and any Updates that Kindo makes available to Customer pursuant to this Agreement, together with all Documentation.
1.20. “Model Weights” means files that are the output of training the Customer Private AI Model which run the Customer Private AI Model.
1.21. “Order Form” means an order that is signed by authorized representatives of both Parties and that sets forth: (i) the Products being ordered; (ii) whether the Product is being made available as downloadable software (“Downloadable Software”) or as an Kindo-hosted, web-based service (“SaaS Software”); (iii) any applicable Usage Limitations (as defined below); (iv) the applicable Fees; (vi) Third-Party AI Models (if any); and (vii) other mutually-agreed upon terms and conditions relating to such order. The Parties’ initial Order Form is set forth as Schedule A. The Parties may subsequently elect to enter into additional Order Forms using a substantially similar form.
1.22. “Output” means data generated by the Products as a result of processing the Input, including but not limited to, predictions, recommended actions, classifications or any other data.
1.23. “Private AI Model” means an AI model that will run within the Kindo infrastructure.
1.24. “Products” means the products set forth on the applicable Order Form that the Customer has ordered.
1.25. “Professional Services” means development, data migration, integration, testing, conversion, installation, consulting, or other services and deliverables, related to the Products but not otherwise provided as part of the Products, as further described in the applicable Statement of Work.
1.26. “Prompt” means information entered as input to condition the applicable Product to behave in a certain way, including any modifications made thereto based on the collaboration of the Parties.
1.27. “Subscription Term” means the duration of the subscription for the Products ordered by Customer as set forth in the applicable Order Form.
1.28. “Third Party AI Models” means AI models provided by third parties, including but not limited to, any open source AI models or commercial AI models, that are used by the Products and identified on the Order Form.
1.29. “Updates” means any generally available corrections, fixes, patches, workarounds, and minor modifications denominated by version changes to the right of the decimal point (e.g., v3.0 to v3.1) to the Products that Kindo provides to Customer under this Agreement. All version numbers shall be reasonably determined by Kindo in accordance with normal industry practice.
1.30. “Usage Data” means the data that we collect in connection with our monitoring of the performance and use of the Products by you and your Authorized Users, including, without limitation, date and time that you access the Products, the portions of the Product visited, the frequency and number of times such pages are accessed, the number of times the Product is used in a given time period and other usage and performance data.
ORDERS. The Products to be made available under this Agreement will be as set forth in one or more Order Forms. Each Order Form is deemed incorporated into and made a part of this Agreement. To the extent any provision set forth in an Order Form conflicts with any provision set forth elsewhere in this Agreement, the provision set forth in this Agreement shall govern, unless such Order Form includes the section numbers of this Agreement that the Parties agree no longer govern or are modified for the matters covered thereby.
ACCESS TO THE PRODUCTS.
3.1. Right to Access the Products. Subject to the terms and conditions of this Agreement and the applicable Order Form, we hereby grant you during the Subscription Term a limited, non-exclusive, non-transferable (except as permitted under Section 12.1), non-sublicensable, revocable right and license to permit your Authorized Users to access and use the Products solely for your internal business purposes. If you have ordered a Private AI Model, the foregoing license shall also allow Customer to permit its Authorized Users to develop Customer Products and make the Customer Products available to End Users.
3.2. Downloadable Software. If the applicable Order Form provides that an item of Software is being made available as Downloadable Software, then promptly following the execution of the applicable Order Form, Kindo shall make the Downloadable Software available for download to Customer. The Downloadable Software will be deemed to have been delivered to Customer upon making the Downloadable Software available for download. Subject to the terms and conditions of this Agreement and the applicable Order Form, Customer may permit Authorized Users to download and deploy the Downloadable Software in Customer’s environment solely for Customer’s internal business purposes. Notwithstanding anything to the contrary set forth in this Agreement and the applicable Order Form, Customer shall be solely responsible and liable for downloading, installing, hosting, servicing and maintaining the Downloadable Software.
3.3. SaaS Software. If the applicable Order Form provides that an item of Software is being made available as SaaS Software, then Customer will not be provided any copies of such Software, but instead will access such Software through the Kindo website identified on such Order form (the “Website”). Kindo will be responsible for hosting the SaaS Software and the Website in accordance with the applicable Order Form, and Customer and Authorized Users will be responsible for obtaining Internet connections and other third-party software and services necessary for it to access the SaaS Software and the Website.
3.4. Usage Limitations. The subscription as it applies to the Products being ordered by Customer, will be subject to any usage limitations that are set forth in the applicable Order Form (“Usage Limitations”).
3.5. Modifications. We reserve the right to modify the Products, from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes. We further reserve the right to discontinue any feature of the Products at any time during the Term at our sole and reasonable discretion. Any such modification or discontinuance will not materially decrease the overall functionality of the Products.
3.6. Beta Features. From time to time, we may invite Customer to try “beta” features or functionalities of the Products which are not generally available to our customers for use at no charge. Customer may accept or decline any such trial in its sole discretion. Such beta features are for evaluation purposes only and not for use, are not considered part of the Product under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any beta feature trial period will expire upon the date that a version of the beta feature becomes generally available to all of our customers for use or upon the date that we elect to discontinue such beta feature. We may discontinue beta features at any time in our sole discretion and may never make them generally available as part of the Product. We will have no liability to Customer or any third party for any harm or damage arising out of or in connection with any use of a beta feature, and Customer’s use of any beta feature is at Customer’s own risk.
3.7. Restrictions on Use. You shall not (and shall not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users or End Users to use the Products; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Products; (iii) modify, adapt, or translate the Products, or any portion or component thereof; (iv) make any copies of the Products, or any portion or component thereof; (v) resell, distribute, or sublicense the Products, or any portion or component thereof, or use any of the foregoing for the benefit of anyone other than Customer; (vi) remove or modify any proprietary markings or restrictive legends placed on the Products; (vii) use the Products, or any portion or component thereof in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (viii) introduce, post, or upload to the Products any Harmful Code; (ix) use the Products in connection with service bureau, timeshare, service provider or like activity whereby you operate the Products for the benefit of a third party; or (ix) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Products.
3.8. Documentation. Customer may copy and use (and permit the Authorized Users or End Users to copy and use) the Documentation solely in connection with the use of the Products under this Agreement.
3.9. Third-Party Items. The Products may include, or be dependent on, certain third-party data, device graphs, software components, blockchains, application programming interfaces, and other items (the “Third-Party Items”). Third-Party Items shall not include any Third-Party AI Models. Kindo agrees that throughout the Subscription Term, Kindo will ensure that it at all times maintains all rights and licenses in and to the Third-Party Items that are necessary to ensure that Customer and its Authorized Users can use the Products in the manner contemplated in this Agreement. Kindo will provide support for the Third-Party Items in the same manner and scope for which it provides support for the Products hereunder. KINDO, NOT BEING THE OWNER, OPERATOR, SUPPLIER, OR PRODUCER OF THE THIRD-PARTY ITEMS NOR THEIR AGENT, DOES NOT ENDORSE ANY THIRD-PARTY ITEMS, AND MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE THIRD-PARTY ITEMS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
3.10. Third-Party AI Models. The Products may use Third-Party AI Models to provide the AI features and functionality. You acknowledge and understand that your use of such AI features and functionality will be governed by the terms and conditions of third parties that provide such Third-Party AI Models (“Third-Party AI Models Terms and Conditions”) and your Input may be used by such third parties in accordance with such Third-Party AI Models Terms and Conditions. Kindo has no control over the use of the Input, thus, any use of such is at your own risk and Kindo does not represent, undertake or warrant to any security or control of or to the Input.
3.11. Onboarding of Authorized Users. Each Authorized User will be required to create an account, which includes a username, a password, and certain additional information, including a valid email address, that will assist in authenticating the Authorized User’s identity when he or she logs into the Software in the future (collectively, “Log-in Credentials”). When creating an account, an Authorized User must provide true, accurate, current, and complete information. You are solely responsible for the confidentiality and use of Authorized Users’ Log-in Credentials, as well as for any use, misuse, or communications entered through the Software. You shall promptly inform us of any need to deactivate a username, password, or other Log-in Credential. We reserve the right to delete or change Authorized Users’ Log-in Credentials at any time and for any reason. We will not be liable for any unauthorized use of an Authorized User’s account.
3.12. Support Services. Kindo shall use commercially reasonable efforts to provide you and your Authorized Users problem resolution and technical support in connection with the Products during the Subscription Term (the “Support Services”).
ROADMAP; PROFESSIONAL SERVICES.
4.1. Roadmap. The Parties acknowledge and agree that as of the Effective Date, Kindo has developed a roadmap that includes certain additional features and functionalities to be added to the Products over the Term of this Agreement (collectively, the “Additional Features”), as specified in Schedule B to this Agreement (“Roadmap”). Kindo shall use commercially reasonable efforts to deliver the Additional Features in accordance with the Roadmap. Kindo will own all right, title and interest in and to all such Additional Features and if you choose to use such Additional Features, the Additional Features you chose to use will be deemed to be included in the definition of Software and will be made available to you on the terms set forth herein. Notwithstanding the foregoing, use of such Additional Features may be subject to additional terms and additional fees and you agree to comply with such additional terms and pay such additional fees in accordance with this Agreement and the applicable Order Form. From time to time during the Term of this Agreement, the Parties will meet to review the Roadmap and the Roadmap may be modified upon mutual written agreement of the Parties.
4.2. Statements of Work. Customer may request Kindo to provide Professional Services. All such Professional Services will be covered by one or more Statements of Work agreed on by the Parties. The work covered by a particular Statement of Work will be referred to in this Agreement as a “Project.” Each Statement of Work will be in writing, signed by an authorized representative of each Party, will reference this Agreement, and will specify for the Project covered by that Statement of Work, without limitation: (i) a description of the Project, including any applicable specifications, milestones, and deliverables to be developed; (ii) the applicable fees; and (iii) any other terms and conditions. The form Statement of Work is attached hereto as Schedule C. Unless otherwise expressly provided in a Statement of Work, if any Professional Services involve the development of any customization to the Products, all rights to such customization will be owned by Kindo and will be deemed to be included in the definition of the Product and will be made available to Customer on the terms set forth herein.
4.3. Cooperation. Customer acknowledges that Kindo’ ability to implement and provide the Professional Services is dependent on Customer providing Kindo complete, accurate, up-to-date, and timely data, information, and other materials. Customer agrees to reasonably cooperate with Kindo; to provide such data, information, and other materials to Kindo; and to cause Customer’s personnel and third-party service providers to do the same.
CUSTOMER MATERIALS; CUSTOMER API; INPUT AND OUTPUT.
5.1. Customer Materials. Subject to the terms and conditions of this Agreement, Customer hereby grants Kindo a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses, to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Materials for the purpose of providing the Products hereunder. Customer will have the sole responsibility for the accuracy, quality, and legality of your Customer Materials.
5.2. License to Customer API. Subject to the terms and conditions of this Agreement and the applicable Order Form, Customer hereby grants Kindo a limited, non-exclusive, non-transferable (except as permitted under Section 12.1), royalty-free, paid-up, right and license during the Subscription Term, with the right to grant sublicenses, to access and use the Customer API in connection with providing the Products under this Agreement.
5.3. Input and Output. Customer is solely responsible for ensuring that the Input and Output complies with applicable laws and this Agreement. You may use the Input and Output for any legal and lawful purposes, at your own risk. Due to the nature of artificial intelligence, Output may not be unique across all users and the AI features and functionality of the Products may generate the same or similar Output for different users or third parties.
5.4. Prompts, Embeddings and Model Weights. Subject to the terms and conditions of this Agreement, Customer hereby grants Kindo a non-exclusive, perpetual, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses to, use the Prompts, Embeddings and Model Weights created by Kindo using Customer Data for Kindo’s business purposes, including but not limited to, to enhance, update, evolve and refine the Products.
5.5. Aggregated Data. Notwithstanding anything to the contrary herein, we may use, and may permit our third-party service providers to access and use, the Customer Materials as well as any Usage Data that we may collect, in an anonymous and aggregated form (“Aggregate Data”) for the purposes of operating, maintaining, managing, and improving our products and services including the Products. Aggregate Data does not identify Customer or any individual (including any Authorized User or End Users). You hereby agree that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data.
5.6. Data Security. We (and any third-party hosting provider that we may engage) will employ commercially reasonable physical, administrative, and technical safeguards to secure the Customer Data, from unauthorized use or disclosure.
INTELLECTUAL PROPERTY. As between the Parties, all right, title, and interest in and to the Products, the Kindo Materials, the Aggregate Data, and the Usage Data, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, are and will remain the sole and exclusive property of Kindo. Subject to Section 5 all right, title, and interest in and to the Customer Products, Customer Data, Customer API, and all intellectual property rights therein, will be and remain Customer’s sole and exclusive property. As between the Parties and to the extent permitted by the Third-Party AI Model Terms and Conditions, we hereby grant you the right to use the Output in accordance with this Agreement.
7.1. Confidentiality Obligations. At all times, the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use its best efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
7.2. Feedback. During the Term, you and your Authorized Users may elect to provide us with feedback, comments, and suggestions with respect to the Products (“Feedback”). Customer agrees that Kindo will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback – together with the related Prompts and Outputs or any derivative thereof, in any manner, without compensation or attribution to you, any Authorized User or End User, including in connection with our development, improvements, and marketing of our Products or other products or services.
REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.
8.1. Representations and Warranties. Each Party represents and warrants to the other Party that: (i) to the extent it is an entity, it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby constitute a valid and binding agreement of such Party; (iii) the individual accepting this Agreement on behalf of a legal entity has the authority to bind such entity to this Agreement; (iv) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (v) it will perform its obligations under this Agreement in compliance with all Applicable Laws.
8.2. Additional Representations and Warranties of Kindo. In addition to the representations and warranties set forth in Section 7.1, Kindo represents and warrants that the Professional Services and Support Services shall be performed in a professional and workmanlike manner.
8.3. Representations and Warranties of Customer. In addition to the representations and warranties set forth in Section 7.1, Customer represents and warrants that: (i) Customer has all rights and permissions, and have provided any notices and obtained any consents that are necessary for us to process the Customer Data, Input, Prompts, and Model Weights that you submit to the Products; (ii) Customer has all rights and permissions to allow Kindo to access and use the Customer API; and (iii) all Customer Products comply with all Applicable Laws.
8.4. Our Disclaimer. ALTHOUGH CERTAIN DATA AND MATERIALS THAT MAY BE GENERATED BY THE PRODUCTS CAN BE USED AS AN AID TO CUSTOMER AND ITS AUTHORIZED USERS TO MAKE INFORMED BUSINESS DECISIONS, SUCH DATA AND MATERIALS ARE NOT MEANT TO SUBSTITUTE LEGAL OR BUSINESS ADVICE OR CUSTOMER’S OR ANY AUTHORIZED USER’S EXERCISE OF THEIR OWN BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT SUCH PARTY’S SOLE DISCRETION AND ELECTION. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 AND SECTION 8.2, THE PRODUCTS, THE OUTPUT, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, ANY THIRD-PARTY ITEMS, ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED BY KINDO HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER KINDO NOR OUR SUPPLIERS OR SERVICE PROVIDERS MAKES ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND KINDO HEREBY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ACCURACY, COMPLETENESS, CURRENTNESS, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. KINDO MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY OF ANY OUTPUTS. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY OF ANY OUTPUT AND YOU SHALL NOT RELY ON KINDO TO DO SO. THE OUTPUT MAY NOT REFLECT CURRENT, CORRECT OR COMPLETE INFORMATION AND YOU, YOUR AUTHORIZED USERS AND END USERS MAY RELY ON THE OUTPUT AT YOUR AND THEIR SOLE RISK. TO THE EXTENT THAT WE MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
LIMITATION OF LIABILITY.
9.1. Liability Exclusion. SUBJECT TO SECTION 9.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY'S RIGHTS) FOR CONSEQUENTIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF USE, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
9.2. Limitation of Damages. SUBJECT TO SECTION 9.3, EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO KINDO BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.
9.3. Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 9.1 AND SECTION 9.2 SHALL NOT APPLY TO: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS; (ii) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (iii) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; OR (iv) CUSTOMER’S FAILURE TO PAY ANY UNDISPUTED SUMS DUE HEREUNDER OR BREACH OF SECTION 3.7 (RESTRICTIONS ON USE).
10.1. Indemnification by Customer. You will indemnify, defend, and hold
Kindo, our Affiliates, our suppliers, and service providers, and our and their respective Representatives harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by any of such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from (i) Customer Products; (ii) allegations that the use of Customer Materials, Customer Products, and/or Customer API in accordance with this Agreement infringes, violates, or misappropriates any third-party intellectual property or privacy rights; (iii) your or any of your Authorized Users’ or End Users’ (a) breach or violation of this Agreement, including any of your representations and warranties hereunder; (b) gross negligence, willful misconduct or fraud.
10.2. Indemnification by Kindo. Kindo will indemnify, defend, and hold Customer, its Affiliates and their respective Representatives harmless from and against any and Losses incurred by any such parties in connection with any Claim (i) arising from Kindo’ gross negligence or willful misconduct, or (ii) alleging that the Products or your use thereof in accordance with this Agreement (other than any Customer Materials therein) infringes or misappropriates any third-party intellectual property rights (an “Infringement Claim”). In the event that we reasonably determine that any Product is likely to be the subject of an Infringement Claim, we will have the right (but not the obligation), at our own expense, to: (a) procure for you the right to continue to use the Product, as provided in this Agreement; (b) replace the infringing components of Product, with other components with equivalent functionality; or (c) suitably modify the Product, so that it is non-infringing and functionally equivalent. If none of the foregoing options are available to us on commercially reasonable terms, Kindo may terminate this Agreement and provide you a pro-rata refund of unused portion of any Fees that you have prepaid for subscription access to any Product. Notwithstanding the foregoing, we are not obligated to indemnify, defend, or hold Customer or its Representatives harmless with respect to any Infringement Claim to the extent the Infringement Claim arises from or is based upon (w) your or your Authorized Users’ use of the Products not in accordance with the Documentation or this Agreement; (x) any unauthorized modifications, alterations, or implementations of the Products made by or on behalf of Customer (other than by Kindo); (y) use of the Products in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or expressly permitted in writing by us; or (z) use of the Products in a manner or for a purpose for which it was not designed. This Section 10.2 states Customer’s sole and exclusive remedy, and our sole and exclusive liability, regarding any Infringement Claim.
10.3. Procedure. The indemnification obligations set forth in Section 10.1 and Section 10.2 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim (provided that failure to provide prompt written notice to of such Claim will not alleviate the indemnifying Party of its obligations under this Section 10 to the extent any associated delay does not materially prejudice or impair the defense of the related Claim); (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.
FEES AND PAYMENT.
11.1. Fees and Taxes. All Fees are due and payable as set forth below. You will be responsible for paying the Fees applicable to the Additional Features only when the Additional Features you choose are turned on for you. Fees are in addition to and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which will be for your account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to us prior to the execution of this Agreement. If we are required to collect and remit Taxes on your behalf, we will invoice you for such Taxes, and you will pay us for such Taxes in accordance with Section 11.2. You hereby agree to defend, indemnify, and hold harmless us, our suppliers, our hosting providers, and our and their respective officers, directors, managers, employees, contractors and agents from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any Taxes and related costs, interest, and penalties paid or payable by us on your behalf. For the avoidance of doubt, we will only be responsible for any taxes related to our income, property, franchise, or employees.
11.2. Payments. We will invoice you for the Fees and any applicable Taxes. All amounts are due and payable to us within thirty (30) days from your receipt of the invoice without setoff or deduction. All amounts due under this Agreement shall be paid by credit card, ACH or wire transfer, or other payment method agreed to by us in writing. If you choose to pay by credit card, you hereby authorize us to charge your credit card on file for the Fees, Expenses and applicable Taxes in accordance with this Section. You further authorize us to use a third party to process such payments, and hereby consent to the disclosure of your billing information to such third party. You shall promptly provide us with updated credit card information in the event that your credit card on file is no longer valid. If the credit card information on file with us is not valid at any time during the Term, or if your credit card cannot be processed on any payment date, (i) you hereby authorize us to continue to attempt to charge the amounts due until such amounts are paid in full; and (ii) we reserve the right to immediately terminate this Agreement, or suspend Authorized User(s) access to the Products, in whole or in part, at our sole discretion.
11.3. Expenses. You will reimburse us for any reasonable, documented, out-of-pocket expenses (“Expenses”) actually incurred by us in connection with the performance of the Services that you have approved in advance, that are set forth in the applicable Statement of Work.
11.4. Late Payments. In the event that any invoiced amount is not received by us by the due date as set forth in Section 11.2, then without limiting our rights and remedies, we may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one percent (1%) per month or the maximum rate permitted by law); (ii) condition future provision of Products on payment terms shorter than those specified in Section 11.2; (iii) suspend the access to the Products pursuant to Section 11.3; and/or (iv) terminate this Agreement in accordance with and pursuant to Section 11.2.
11.5. Non-Refundable. Unless otherwise expressly provided for in this Agreement, all Fees paid under this Agreement are non-refundable.
11.6. No Contingency for Future Commitments. You agree that payment of the Fees under this Agreement is not contingent on the delivery of any future functionalities, or features, or any other future commitments for the Products.
TERM AND TERMINATION.
12.1. Term. The initial term of this Agreement commences on the Effective Date and continues in full force and effect for a period of three (3) years, unless earlier terminated pursuant to Section 12.2 (the “Initial Term”). Upon expiration of the Initial Term, this Agreement will automatically renew for a successive one (1) year renewal terms (each, a “Renewal Term” and collectively, with the Initial Term, the “Term”), unless either Party notifies the other Party of its intent to not renew at least thirty (30) days prior to the expiration of the then-current Term. The term of each Statement of Work will be for the term set forth therein. The term of each Order Form will be for the applicable Order Term.
12.2.1. Either Party may terminate this Agreement, any Order Forms and/or any Statements of Work: (i) upon thirty (30) days’ written notice to the other Party if the other Party breaches a material term of this Agreement, any Order Form and/or any Statement of Work, and the breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors and such proceeding is not dismissed within ninety (90) days.
12.2.2. We may terminate this Agreement for convenience upon thirty (30) days’ written notice to you.
12.2.3. We may terminate this Agreement upon written notice to you under the limited circumstances set forth in Section 10.2.
12.3. Suspension for Non-Payment. We may suspend your access to the Products upon written notice to you if any undisputed invoiced amount due to us is past due. We will not suspend your access to the Products while you are disputing any invoiced amount due to us reasonably and in good faith and are cooperating diligently to resolve the dispute. If your access to the Products is suspended for non-payment, we may charge a reactivation fee to reinstate the access. You will promptly reimburse us for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees we incur, to the extent necessitated by your refusal to pay any invoiced amounts that you are not disputing in good faith.
12.4. Effect of Termination. Upon termination of this Agreement: (i) we will stop providing the Products, and you will stop all access to and use of the Products, subject to the Transition Period (if applicable); (ii) you will promptly pay all unpaid Fees and applicable Taxes due through the end of the Term; and (iii) each Party will either return to the Disclosing Party (or, at such Disclosing Party’s instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party’s Confidential Information that are in the Receiving Party’s possession or control. If you have ordered a Private AI Model, upon termination or expiration of this Agreement for any reason (except in the event of a material breach of the Agreement by Customer), at Customer’s election and expense, Kindo will continue to provide Customer with access to the Private AI Model and assist Customer with an orderly transition away from use of the Private AI Model for a transition period of up to six (6) months (the “Transition Period”) at Kindo’ rates as negotiated with the Customer.
12.5. Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 5 (“Customer Data”), Section 6 (“Intellectual Property”), Section 7 (“Confidentiality; Feedback”), Section 8.4 (“Our Disclaimer”), Section 9 (“Limitation of Liability”), Section 10 (“Indemnification”), Section 11 (“Fees and Payment”); Section 12.4 (“Effect of Termination”), this Section 12.5 (“Survival”), and Section 13 (“General Provisions”).
13.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that each Party may, upon written notice to the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
13.2. Waiver. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
13.3. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, without regard to conflict of law principles. Each Party hereby irrevocably and unconditionally agrees that any legal action or suit related to this Agreement may be brought in any state or federal court of competent jurisdiction sitting in the State of California.
13.4. Notices. All notices that you are required to give under this Agreement must be in writing and will be delivered either personally or by e-mail, national overnight courier. Notices will be effective upon actual delivery to and receipt by the other party.
13.5. Independent Contractors. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
13.6. Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement, which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.
13.7. Force Majeure. Neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, COVID-19, quanrantine restrictions, freight embargoes, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers (collectively, “Force Majeure Event”). When such Force Majeure Event arises, either Party shall notify the other immediately in writing of its failure to perform, describing the cause of failure and how it affects performance, and the anticipated duration of the inability to perform. For the avoidance of doubt, nothing in this Section 13.7 shall be construed to excuse any payment obligations hereunder.
13.8. Third-Party Beneficiaries. The Parties agree that there are no third-party beneficiaries under this Agreement.
13.9. Complete Understanding. This Agreement together with all attached Schedules, constitutes the final and complete agreement between you and us regarding the subject matter hereof, and supersedes any prior or contemporaneous communications, representations, or agreements between us, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. If any of your Authorized Users have entered into an agreement with us with respect to the subject matter hereof, then this Agreement terminates and replaces any prior agreement between such Authorized User and us with respect to the subject matter hereof.