Aug 29, 2023
These Terms of Service (these “Terms of Service”) is a legal agreement between you and Usable Machines, Inc. dba Kindo (“Kindo,” “we,” “us,” or “our”). These Terms of Service specify the terms under which you may access and use our proprietary products and related services that are made available to you through our website located at https://app.kindo.ai/ (the “Products”).
If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, “you” and “your” will refer and apply to that company or other legal entity.
We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Products, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on the website. By continuing to access or use the Products after we have posted a modification on the Products, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Products.
In addition to these Terms of Service, we provide access to our Products in accordance with that certain Master SaaS Agreement between Kindo and your employer (“Master SaaS Agreement”). In the event of a conflict or inconsistency between the terms and conditions in these Terms of Service or the Master SaaS Agreement, the Master SaaS Agreement shall control.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
RIGHT TO ACCESS AND USE THE PRODUCTS
Subject to the terms and conditions of this Agreement, Kindo hereby grants you during the Term of this Agreement a limited, non-exclusive, non-transferable, non-sublicensable, revocable right, to access and use the Products solely for your internal business purposes. You will not (and will not authorize, permit, or encourage any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Products; (ii) modify, adapt, or translate the Products, or any portion or component thereof; (iii) make any copies of the Products, or any portion or component thereof; (iv) resell, distribute, or sublicense the Products, or any portion or component thereof; (v) remove or modify any proprietary markings or restrictive legends placed on the Products; (vi) 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; (vii) introduce, post, or upload to the Products any virus, worm, “black door,” Trojan Horse, or similar harmful code; (viii) save, store, or archive any portion of the services (including, without limitation, any data contained therein) outside the Products other than those outputs generated through the intended functionality of the Products without the prior, written permission of Kindo in each instance; (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 (x) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Products. If you violate this section, Kindo reserves the right in its sole discretion to immediately deny you access to the Products, or any portion of thereof, without notice. Kindo reserves the right to change the availability of any feature, function, or content relating to the Products, at any time, without notice or liability to you.
SIGN-IN NAME; PASSWORD; UNIQUE IDENTIFIERS
In order to use the Products, you will have to register by creating an account, by providing your name, company name (if applicable), email address, and creating a password (collectively, the “Account Credentials”). When creating your account, you must provide true, accurate, current, and complete information. Each Account Credentials can be used by only one Registered User. You are responsible for the confidentiality and use of your Account Credentials, including all activities that are associated with your Account Credentials. You will promptly inform us of any need to deactivate your Account Credentials. Kindo is under no obligation to accept any individual as a Registered User of the Products, and may accept or reject any registration in its sole and complete discretion. We have the right to disable any Account Credentials at any time for any reason, including if in our sole discretion we believe that you have failed to comply with these Terms of Service.
USE OF PERSONAL INFORMATION
THIRD-PARTY ITEMS; THIRD-PARTY AI MODELS
Third-Party Items. The Products may include, or be dependent on, certain third-party data, software components, application programming interfaces, and other items (the “Third-Party Items”). Third-Party Items shall not include any Third-Party AI Models. 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.Third-Party AI Models. The Products may use AI models provided by third parties, including but not limited to, any open source AI models or commercial AI models (collectively, the “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 Data (as defined below) 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 Your Data by such third parties, 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 Your Data.
The Products contain materials, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Kindo, including Third-Party Items and Third-Party AI Models (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content, and the Products automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Kindo (the “Kindo Trademarks”) used and displayed on the Products are registered and unregistered trademarks or service marks of Kindo. Other company, product, and service names located on the Products may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Kindo Trademarks, the “Trademarks”). Nothing on the Products should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any website is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Kindo Trademarks inures to our benefit.
Elements of the Products are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
YOUR DATA; USAGE DATA; OUTPUT; AGGREGATE DATA
For purposes of this Agreement, “Your Data” means any data and information that you submit to the Products; “Usage Data” means anonymous, analytical data that Kindo collects concerning the performance and your use of the Products, including, without limitation, date and time that you access the Products, the portions of the Products visited, the frequency and number of times such Products are accessed, the number of times the Products is used in a given time period and other usage and performance data; “Output” means data generated by the Products as a result of processing Your Data, including but not limited to, predictions, recommended actions, classifications or any other data.
You own all right, title, and interest in and to Your Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all intellectual rights therein. You hereby grant 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 Your Data: (i) during the Term of this Agreement, in furtherance of Kindo’s obligations hereunder; and (ii) for Kindo’s business purposes, including but not limited to, enhancing, updating, evolving and refining the Products.
You are solely responsible for the accuracy, quality, and legality of Your Data. You are solely responsible for ensuring that Your Data and Output complies with applicable laws and this Agreement. You may use the 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. As between the parties and to the extent permitted by the Third-Party AI Model Terms and Conditions, Kindo hereby grants you the right to use the Output for your internal business purposes in accordance with this Agreement.
Notwithstanding anything to the contrary herein, we may use, and may permit our third-party service providers to access and use, Your Data, 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 you. You hereby agree that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data.
By accessing and/or using the Products, you hereby agree to comply with the following guidelines:
• You will not use the Products for any unlawful purpose;
• You will not access or use the Products to collect any market research for a competing businesses;
• You will not upload, post, e-mail, transmit, or otherwise make available any content that:
• infringes any copyright, trademark, right of publicity, or other proprietary rights of any person or entity; or
• constitutes promotion or advertising of any third-party website, product or service; or
• is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or
• discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information.
• You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
• You will not decompile, reverse engineer, or disassemble any software or other products or processes accessible through the Products;
• You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Products;
• You will not circumvent, remove, alter, deactivate, degrade, or thwart any of the protections in the Products;
• You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Products, directly or indirectly, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
• You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; and
• You will not interfere with or attempt to interrupt the proper operation of the Products through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Products through hacking, password or data mining, or any other means.
The Products are available only for individuals aged 18 years or older. If you are under 18 years of age, then please do not access and/or use the Products. By entering into this Agreement, you represent and warrant that you are 18 years or older.
We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Products and our services (“Feedback”). Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.
NO WARRANTIES; LIMITATION OF LIABILITY
THE PRODUCTS, THE CONTENT, THE OUTPUT, THEIR COMPONENTS, 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 ITS 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 MAY RELY ON THE OUTPUT AT YOUR 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.
WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION, NOR SHALL WE BE RESPONSIBLE FOR (A) THE CORRECTNESS, ACCURACY, RELIABILITY, COMPLETENESS OR CURRENCY OF THE PRODUCTS OR THE CONTENT OR OUTPUT PROVIDED THROUGH THE PRODUCTS; OR (B) ANY RESULTS ACHIEVED OR ACTION TAKEN BY YOU IN RELIANCE ON THE PRODUCTS OR THE CONTENT OR OUTPUT PROVIDED THROUGH THE PRODUCTS. ANY DECISION, ACT OR OMISSION OF YOURS THAT IS BASED ON THE PRODUCTS OR THE CONTENT OR OUTPUT PROVIDED THROUGH THE PRODUCTS IS AT YOUR OWN AND SOLE RISK. THE PRODUCTS AND THE CONTENT AND OUTPUT PROVIDED THROUGH THE PRODUCTS IS PROVIDED AS A CONVENIENCE ONLY AND DOES NOT REPLACE THE NEED TO REVIEW ITS ACCURACY, COMPLETENESS AND CORRECTNESS.
IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PRODUCTS, THE CONTENT, THE OUTPUT, OR ANY RELATED SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE PRODUCTS, THE CONTENT, THE OUTPUT, OR ANY RELATED SERVICES SHALL BE LIMITED TO THE GREATER OF (I) MONIES YOU HAVE PAID US IN CONNECTION WITH YOUR USE OF THE PRODUCTS DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE THAT GAVE RISE TO THE CLAIM OR (II) ONE HUNDRED DOLLARS ($100).
The Products may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the website administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
REPRESENTATIONS AND WARRANTIES
You represent and warrant that you have: (i) all rights and permissions necessary to provide us with or grant us access to and use of Your Data, and (ii) obtained all necessary and appropriate consents, permissions, and authorizations in accordance with all applicable laws and regulations with respect to Your Data provided hereunder.
You will indemnify, defend, and hold Kindo, its affiliates, and our and their respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, “Kindo Indemnitees”) harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, “Losses”) incurred by any Kindo Indemnitee in connection with a third-party claim, action, or proceeding (each, a “Claim”) arising from your (i) breach of this Agreement, including but not limited to, any breach of your representations and warranties; (ii) misuse of the Products, the Output, and/or the Content; (iii) Your Data; (iv) negligence, gross negligence, willful misconduct, fraud, misrepresentation or violation of law; or (v) violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise.
COMPLIANCE WITH APPLICABLE LAWS
The Products are based in the United States. We make no claims concerning whether the Products may be viewed or be appropriate for use outside of the United States. If you access the Products from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
Your right to access and use the Products will commence upon your acceptance of these Terms of Service and will continue until terminated in accordance with this Section 16 (the “Term”).
We reserve the right to change, suspend, discontinue or terminate your access and use of all or any part of the Products at any time without prior notice or liability. You have the right to terminate this Agreement with notice to Kindo. Upon termination of this Agreement, we will delete your account and personal information that we have in our possession or control. Sections 5, 6, 7, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20 and 21 shall survive the termination of these Terms of Service.
In the event of a dispute arising under or relating to this Agreement, the Products (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 19 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
CLASS ACTION WAIVER
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of California for purposes of any such action by us.
CONTROLLING LAW; EXCLUSIVE FORUM
The Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of California for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement.
You may not assign any of your rights, duties, or obligations under these Terms of Service to any person or entity, in whole or in part, without written consent from Kindo. Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Copyright 2023 Usable Machines, Inc. dba Kindo. All rights reserved.