Subscription Services Agreement
This Subscription Services Agreement (the “Agreement”) is between LSpire, Inc. d/b/a KayoCloud (“KayoCloud”), a Delaware corporation. KayoCloud, and you and/or your employer (collectively “Client,” “You,” and/or “Your”) as set forth on the applicable services order form (each an “Order”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICES.
BY USING THE SERVICES AND/OR CLICKING “AGREE”, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF AND TO BIND YOUR EMPLOYER TO THIS AGREEMENT.
1. Description of Services
KayoCloud shall grant to Client access to the services (each, a “Service”) set forth in the applicable Order.
2. License Grant
a. Limited License. Subject to Client’s compliance with the terms and conditions of this Agreement, including, but not limited to, Client’s obligation to pay the Fees when due, KayoCloud grants to Client a limited, non-exclusive, non-transferable license to access and use the Services for the specific assets listed in the Order during the Subscription Term of the applicable Order for Client’s internal business purposes.
b. Authorized Users. Client may permit, as applicable, its and its affiliates’, employees, contractors, and/or brokers to access and use the Services licensed by Client for the benefit of Client (collectively, “Users”). Use of the Services by Users shall be subject to any additional restrictions and/ or fees as set forth in the Order as well as notices and limits on functionalities as may be provided within the Services. Subject to the foregoing, with respect to permitted Users, Client shall act as the administrator of its account, and shall determine the level of access to the Services and the Client Content (as defined below) it grants to each such User. At all times, Client shall be responsible and liable for all actions of its Users. Client (i) must keep its and all User passwords secure and confidential; (ii) must use commercially reasonable efforts to prevent unauthorized access to its and its User’s account and notify KayoCloud promptly of any such unauthorized access; (iii) must use the Services only in accordance with this Agreement and Applicable Law; and (iv) must provide true and accurate information in the course of creating user accounts.
c. Restrictions on Use. Client shall not and shall ensure that each User does not (i) sell, resell, rent or lease the Services or use it in a service provider capacity; (ii) use the Services to store or transmit unsolicited marketing emails, libelous or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third party rights; (iii) interfere with or disrupt the integrity or performance of the Services; (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) except as may be permitted by law, reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services; (vi) access the Services to build a competitive service or product, or copy any feature, function or graphic for competitive purposes; (vii) utilize the Services in a manner that exceeds the license parameters provided on the relevant Order; (viii) use the Services in violation of any Applicable Law (as defined below) or for any purpose not specifically permitted in this Agreement; or (ix) introduce, post, or upload to the KayoCloud platform any Harmful Code (as defined below). As used in this Agreement, (1) “Applicable Law” means, with respect to any entity or person, 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 entity or person, or any of its properties, assets, or business operations, and (2) “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 KayoCloud platform or the KayoCloud website, 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 Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Services.
a. Fees. In consideration for Client’s access to and use of the Services, Client shall pay to KayoCloud the fees set forth in the applicable Order (the “Fees”). Client understands and agrees that for each renewal of the Subscription Term, the effective prices of the Services may be increased by KayoCloud by up to 10% above the applicable pricing for the same Services during the immediately preceding Subscription Term.
b. Taxes. All Fees are in addition to, and do not include, any federal, state, or local sales, use, withholding, VAT and other similar taxes (collectively, “Taxes”). Client is responsible for the payment of all applicable Taxes, without deduction or offset to the Fees due. Any applicable direct pay permits or valid tax-exempt certificates must be provided to KayoCloud prior to the execution of any Order. If KayoCloud is required to collect and remit Taxes on Client’s behalf, KayoCloud will invoice Client for such Taxes, and Client will pay KayoCloud for such amounts in accordance with the payment terms set forth below.
c. Payment Terms. Client will be invoiced for the Fees annually in advance, unless otherwise specified on the Order. Client must make payment under all invoices as specified on the Order, but if not specified, then within thirty (30) days of receipt of an invoice.
d. Expenses. Client shall be responsible for the cost of KayoCloud’s reasonable and pre-approved travel and reasonable expenses associated with any onsite trainings and/or implementation services as may be set forth in the applicable Order.
4. Proprietary Rights
a. Client Content. All data and content uploaded or transmitted by Client through the Services into its account or created or generated by Client within its account in the Services (collectively, “Client Content”) is and shall remain the property of Client, as between KayoCloud and Client. If Client is given permission by another customer of KayoCloud to access such other customer’s account within the Service, then, as between Client and such other customer, the other customer shall remain the owner and data controller of any data uploaded or manipulated within such other customer’s account. For the avoidance of doubt, Client Content expressly excludes (i) videos created by KayoCloud and uploaded to Client’s account, and (ii) any data and content accessed by Client which belongs to KayoCloud or another KayoCloud customer.
KayoCloud will implement appropriate technical and organizational measures for protection of the security, confidentiality and integrity of Client Content, including any Client Personal Data. Subject to the terms and conditions of this Agreement, Client hereby grants KayoCloud a non-exclusive, worldwide, fully paid-up, royalty-free, transferable right and license, with the right to grant sublicenses to vendors providing services to KayoCloud related to the performance of the Services (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Client Content for the purpose of providing the Services hereunder, and for the purpose of creating Aggregate Data (as defined below). KayoCloud shall not be responsible for modifications, manipulations, updates or deletions to the Client Content made by Users nor responsible for confirming the accuracy of any Client Content. During the term of this Agreement, Client may export its Client Content as allowed by the functionality within the Service. Upon expiration or termination of the Agreement, KayoCloud may retain an archival copy of the Client Content kept in the normal course of business or for purposes of complying with Applicable Law, provided that such archival copy shall be retained on a confidential basis for the duration of its retention.
b. Third Party Software. Any third party software provided by KayoCloud as part of the Services and specified in an Order (“Third Party Software”) is licensed to Client as follows: KayoCloud grants Client a non-exclusive, non-transferable license during the Subscription Term to use third party software provided by KayoCloud as part of the Services solely as provided as a component of a Service.
c. KayoCloud Intellectual Property. The Services, and any and all software, workflow processes, API, user interfaces, databases, designs, documentation, videos created by KayoCloud, and other technologies or content provided by KayoCloud as part of the Services (the “KayoCloud Intellectual Property”), are and shall remain the property of KayoCloud and its licensors, and all right, title and interest in and to the KayoCloud Intellectual Property, including all associated intellectual property rights, remain only with KayoCloud and its licensors, along with any know-how, inventions, methods or techniques related to the Services developed or conceived as a result of KayoCloud providing, or Client using, the Services, including without limitation any derivative works, improvements or enhancements and/or extensions of the foregoing (collectively, the “Developments”). Client hereby unconditionally and irrevocably assigns to KayoCloud any and all rights it might otherwise acquire in the KayoCloud Intellectual Property and any Developments as a result of its use of the Services or otherwise. Client may not make any modification to the Services, including removal or modification of any proprietary marking or restrictive legends contained therein. KayoCloud reserves all rights unless expressly granted in this Agreement.
d. Aggregate Data. Client hereby agrees that KayoCloud and its successors and assigns may collect, use, publish, disseminate, sell, transfer, and otherwise exploit the Client Content provided that such Client Content has been aggregated, anonymized, and de-identified by KayoCloud (“Aggregate Data”). Aggregate Data does not and shall not identify Client, any User, or any individual and shall not include any personally identifiable information. Aggregate Data may also be combined with Usage Data, and such combined data, or subsets thereof, may be used by KayoCloud for any lawful purpose. “Usage Data” means data collected by KayoCloud in monitoring the performance and use of the Services by Client, and may include, without limitation, date and time that Users access the Services, the portions of the Services visited, the frequency and number of times the Services are accessed, and other performance data. Usage Data may not be disclosed in a non-confidential manner unless it has been anonymized and de-identified. KayoCloud is the sole owner of all right, title, and interest in and to the Aggregate Data and the Usage Data, which shall be deemed KayoCloud Intellectual Property for purposes of this Agreement.
5. Representations and Warranties
a. Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and Orders; (ii) the execution, delivery, and performance of this Agreement, and Orders and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such party, and constitute a valid and binding agreement of such party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) its performance under this Agreement shall comply with all Applicable Laws.
b. Client Representations and Warranties. Client represents and warrants to KayoCloud that (i) it has all necessary rights, and has obtained all necessary consents, to upload the Client Content and use the Client Content in connection with the Services, and to grant the rights and licenses granted hereunder with respect to all Client Content and (ii) the Client Content does not and will not infringe, violate, or misappropriate any right of any third party, including, without limitation, any intellectual property rights.
c. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5(a), THE SERVICES, THE KAYOCLOUD WEBSITE, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED BY KAYOCLOUD HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND KAYOCLOUD MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT KAYOCLOUD 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.
6. Mutual Confidentiality
a. Definition of Confidential Information. “Confidential Information” means all non-public information disclosed by a party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. KayoCloud’s Confidential Information includes, without limitation, the Services (including, without limitation, the Services’ user interface design and layout and pricing information), the Aggregate Data, the Usage Data, and all non-public KayoCloud techniques, technology and processes. Client’s Confidential Information shall include the Client Content.
b. Protection of Confidential Information. The Recipient must use the same degree of care to protect the confidentiality of the Discloser’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care). The Recipient must not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations to Recipient no less restrictive than the confidentiality terms of this Agreement. The Recipient shall be responsible for the acts and omissions of all of its employees and contractors, and any breach of this Agreement by any of its employees and contractors shall be deemed a breach of this Agreement by the Recipient.
c. Exclusions. Notwithstanding subsection (a) of this Section, Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with reasonable advance notice to seek a protective order to the extent allowed by law or court order. If such protective order or other remedy is not obtained or the Discloser waives compliance with the provisions of this Section, the Recipient may furnish only that portion of the Discloser’s Confidential Information which it is advised by its counsel is legally required to be disclosed and will use commercially reasonable efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
d. Return/Destruction of Confidential Information. Upon expiration or termination of the Agreement, the Recipient will upon request of the Discloser, return to the Discloser, or destroy all copies of the Discloser’s Confidential Information, except for archival and back-up copies on back-up tapes maintained to comply with Applicable Laws, which shall be maintained in a confidential manner for the duration of their retention.
7. Term and Termination
a. Term. This Agreement continues until all Orders have terminated. The term of each Order (each, a “Subscription Term”) shall be set forth in the applicable Order.
b. Termination. Either party may terminate this Agreement and/or any Order(s) if the other party (i) is in material breach of this Agreement and has not cured such breach within thirty (30) days of the date of notification by the non-breaching party; or (ii) becomes the subject of insolvency, receivership or bankruptcy proceedings (or such analogous proceedings applicable to a party under local laws) or any other proceedings for the settlement of either party’s debts, or makes an assignment for the benefit of such party’s creditors. In addition, KayoCloud may terminate an Order under the limited circumstances set forth in Section 9(a) below.
c. Return of Client Content. Within sixty (60) days after termination, upon request, KayoCloud will provide a flat file data export of Client Content. After such sixty (60) day period, KayoCloud has no obligation to maintain the Client Content and may destroy it. Notwithstanding the foregoing, KayoCloud reserves the right to retain an archival copy of the Client Content in accordance with Section 4(a) above.
d. Return KayoCloud Property Upon Termination. Upon termination of this Agreement for any reason, Client must pay KayoCloud for any unpaid amounts and destroy or return all property of KayoCloud, including, without limitation, the KayoCloud Confidential Information. Upon KayoCloud’s request, Client will confirm in writing its compliance with this destruction or return requirement.
e. Suspension of the Service. KayoCloud may temporarily suspend the Services or remove the applicable Client Content, or both, if it in good faith believes that (i) as part of using the Service, Client has violated a law or a restriction in Section 2(c) above, or (ii) any amount owed under an Order is more than thirty (30) days past due following written notice of such past due amount. KayoCloud will attempt to contact Client in advance of any suspension.
8. Liability Limit
a. EXCEPT FOR LIABILITY ARISING IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BREACH OF ITS CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA, RECORDS OR INFORMATION, AND LOST PROFITS, REVENUE OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. KayoCloud’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
b. Exclusions. Notwithstanding the foregoing, nothing in Section 8 shall limit or exclude either party’s liability for any liability that cannot be limited or excluded by Applicable Law.
a. By KayoCloud. KayoCloud will indemnify, defend and hold Client harmless from and against any liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by Client in connection with any third-party action, claim, or proceeding (each, a “Claim”) to the extent that such third-party Claim (i) alleges that the Service or any KayoCloud technology used to provide the Service violates any US copyright, patent, trademark or other intellectual property right of a third party, (ii) arises from KayoCloud’s breach of any of the representations and warranties made under Section 5, or (iii) arises from KayoCloud’s gross negligence or willful misconduct. If such a third-party Claim appears likely, then KayoCloud may, at its expense, (x) procure the necessary rights for Client to use the Service as provided in this Agreement and the applicable Order, (y) replace the infringing components of the Service or underlying technology with a substantially functional equivalent, or (z) suitably modify the Service or underlying technology so that it is non-infringing and functionally equivalent. If KayoCloud determines that none of these options are reasonably available, then KayoCloud may terminate the applicable Order and refund a pro-rata portion of any Fees prepaid by Client for Services not yet rendered. Notwithstanding anything to the contrary herein, KayoCloud has no obligation to indemnify, defend, or hold Client harmless in connection with any Claim arising from (1) Client’s or any User’s combination of the Service with other technology, services, software or hardware where the infringement would not have occurred but for the combination; (2) any unauthorized modifications, alterations, or implementations of the Service made by or on behalf of Client (other than by KayoCloud); (3) Client’s or its Users’ use of the Service not in accordance with the documentation provided by KayoCloud, this Agreement, and/or an Order; or (4) Client’s or its Users’ use of the Service in a manner or for a purpose for which they were not designed. This section contains Client’s exclusive remedies and KayoCloud’s sole liability for intellectual property infringement Claims.
b. By Client. Client will indemnify, defend, and hold KayoCloud, its affiliates, its suppliers and hosting providers, and its and their respective officers, directors, members, managers, partners, employees, contractors or agents (“KayoCloud Indemnified Parties”) harmless from and against any and all Losses incurred by any KayoCloud Indemnified Party in connection with any third-party Claim to the extent such Claim arises out of (i) any allegation that the Client Content or any portion thereof, or any use by KayoCloud thereof as permitted under this Agreement, infringes, misappropriates, or violates any patent, copyright, trade secret, contract right, or other right of any third party, (ii) Client’s breach of any of the representations and warranties made under Section 5 above, or (iii) Client’s gross negligence or willful misconduct.
c. Procedure. The indemnified party shall promptly notify the indemnifying party in writing of any third-party Claim for which the indemnifying party may have obligations under this Section 9; provided, however, that any failure of the indemnified party to provide prompt written notice pursuant to this Section 9 shall excuse the indemnifying party only to the extent that it is prejudiced thereby. The indemnified party shall reasonably cooperate with the indemnifying party, at the indemnifying party’s sole expense, with regard to the defense of any Claim. The indemnifying party shall have full control of any such Claim and the authority to settle or otherwise dispose of any suit or threatened suit. In no event, however, may the indemnifying party agree to any settlement of any Claim for which it has agreed to provide indemnification under this Agreement if such settlement would impose any liability or obligation upon the indemnified party, without the indemnified party’s prior, written consent.
10. Data Protection
a. Definitions and Interpretation
I. “Client Personal Data” means any Personal Data in respect of which Client is a data controller or another entity’s data processor that is processed by KayoCloud as a data processor or subprocessor, respectively, in connection with its performance of the Services.
II. “Personal Data” means any data concerning applicable protected individuals (1) falling within the definition of “personal data” under Directive 95/46/EC of the European Parliament and of the Council (the “Directive”) or any replacement legislation, as applicable, including the General Data Protection Regulation 2016/679 (the “GDPR”) and the Member State implementations of the GDPR (collectively, “EU Data Protection Laws”) or (2) the definition of “personal data” or “personal information” under other such applicable privacy law as may be in effect regarding the data of that individual..
III. Terms defined in the EU Data Protection Laws including, but not limited to, “controller” and “processor,” shall have the same meaning when used, unless otherwise defined, herein.
b. Nature of the Processing
I. Subject Matter. The subject matter of Personal Data processing by KayoCloud is the provision of the Services to the clients of KayoCloud.
II. Duration. KayoCloud will process Personal Data during the Subscription Term and up to sixty (60) days after the expiration of the Subscription Term pursuant to Section 7(c) above.
III. Nature and Purpose. Processing is done to provide the Services to Client and communicate with Client in relation to the Services.
IV. Data Categories. KayoCloud shall process Personal Data entered into the Services by Client, as well as Personal Data provided by Client personnel interacting with KayoCloud.
V. Data Subjects. Processing concerns Client’s personnel using the Services or otherwise involved in their procurement or use by Client and third-party data subjects whose Personal Data is included in the Client Content.
c. Processor Obligations
I. Client and KayoCloud acknowledge and agree that Client is the controller of Client Personal Data and KayoCloud is the processor of Client Personal Data pursuant to the Agreement. In certain instances, Client may be the processor of Client Personal Data, in which case KayoCloud is appointed as a subprocessor of such Client Personal Data pursuant to the Agreement. Whether KayoCloud is serving as a processor or subprocessor, KayoCloud’s obligations shall remain pursuant to this Agreement, which align with KayoCloud’s obligations as a processor pursuant to EU Data Protection Laws.
II. KayoCloud shall only use, disclose, or otherwise process Client Personal Data, on behalf of and in accordance with Client’s documented instructions, unless otherwise provided under Applicable Law.
III. Client hereby authorizes KayoCloud to transfer Client Personal Data to the United States for provision of the Services and performance under this Agreement, provided that (1) KayoCloud is self-certified to the E.U.-U.S. Privacy Shield with respect to Client Personal Data; or (2) KayoCloud and Client have entered into Commission Decision C(2010)593 Standard Contractual Clauses (Processors) (“Model Clauses”) with respect to Client Personal Data, as applicable.
IV. KayoCloud shall ensure that its personnel authorized to process Client Personal Data are subject to a duty of confidentiality by contract or are under an appropriate statutory obligation of confidentiality with respect to Client Personal Data.
V. KayoCloud shall implement appropriate technical and organizational measures with respect to Client Personal Data, after taking into account the state of the art, the costs of implementation, and the nature, scope, context, and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of data subjects, for the purpose of ensuring a level of security appropriate to the risk.
VI. Upon becoming aware of an accidental or unlawful destruction, loss, alteration, unauthorized disclosure, access, or use of Client Personal Data (each, a “Security Incident”), KayoCloud shall notify Client without undue delay. KayoCloud shall further assist Client in fulfilling its personal data breach notification obligations under Applicable Law, taking into account the nature of the processing and the information available to the KayoCloud.
VII. Client hereby consents to KayoCloud’s use of the third parties described in the KayoCloud Subprocessor List in Appendix A at www.KayoCloud.com/terms, as such list may be updated from time to time (“Downstream Subprocessors”) to process Client Personal Data pursuant to the Agreement. If Client reasonably objects in writing to a new or replacement Downstream Subprocessor within seven (7) calendar days after receipt of notice of such change, and the parties cannot resolve Client’s reasonable objection within fourteen (14) calendar days after receipt of such objection, then Client may terminate the Services impacted by the new or replacement Downstream Subprocessor on written notice to KayoCloud.
VIII. Notwithstanding the foregoing, KayoCloud may replace or add a Downstream Subprocessor without prior notice to Client if, in its sole discretion, such action is necessary to prevent or mitigate risk to the Services, Personal Data, technology infrastructure, or Clients. KayoCloud shall update the Subprocessor List with the replacement or additional Downstream Subprocessor as soon as possible, and Client shall retain the right to object to such Downstream Subprocessor as described in (vii) above upon receipt of such notice.
IX. KayoCloud shall enter into written contracts with its Downstream Subprocessors that include data protection obligations that are at least as strict as the standard set forth in this Agreement and shall remain liable for any breach by Downstream Subprocessor under this Agreement as if it were a breach by KayoCloud.
X. Taking into account the nature of the processing, and to the extent Client cannot fulfill such obligations directly via the Services, KayoCloud shall provide commercially reasonable assistance, including through appropriate technical or organizational measures, insofar as this is possible, to Client to fulfill its obligations to respond to data subject rights requests, specifically the right to access, rectification, erasure, restriction, objection, or portability, as applicable under Applicable Law. If KayoCloud receives a request directly from a data subject it will notify Client of the request (including all relevant details provided by data subject) and await Client’s instructions.
XI. KayoCloud shall notify Client without undue delay if a supervisory authority or law enforcement authority makes any inquiry or request for disclosure of Client Personal Data.
XII. KayoCloud shall provide Client with reasonable assistance should Client conduct a data protection impact assessment regarding the Services, including providing information reasonably necessary for Client’s prior consultation with a supervisory authority regarding such data protection impact assessment.
XIII. KayoCloud shall make available to Client all information necessary to demonstrate compliance with the obligations laid down in this Section and, at Client’s expense, allow for and contribute to audits, including inspections, conducted by the Client or an independent third-party auditor mandated by the Client. KayoCloud shall inform Client immediately if, in its opinion, a Client instruction infringes Applicable Law.
XIV. Upon termination or expiration of this Agreement, KayoCloud shall, in accordance with the terms of this Agreement, delete or return to Client all relevant Client Personal Data (and delete all copies) in KayoCloud’s possession, save to the extent that KayoCloud is required under any Applicable Law to retain some or all Client Personal Data or is retained pursuant to the archival and backup policies of KayoCloud. In such event, KayoCloud shall extend the protections of this Agreement to such Client Personal Data and limit processing of such Client Personal Data to only those purposes for so long as KayoCloud maintains the Client Personal Data.
d. Aggregate Data
I. Client hereby grants KayoCloud the right to process and use the Aggregated Data as described in Section 4(d), including, but not limited to, for the purposes of statistics, usage reporting, data analytics, industry analysis, market research, and other similar purposes, and for general business purposes including, but not limited to, the sale and/or license of Aggregated Data to third parties.
11. KayoCloud Refresh
During any Subscription Term for which KayoCloud’s Service known as KayoCloud Refresh is licensed, if applicable, the KayoCloud Refresh Service will regularly update the following types of data within the Services on the terms and conditions contained herein:
- Rent rolls (includes options and rights data if not included in rent roll) on a monthly basis
- Budget data on an annual basis
- Site plans as changes occur, no more than once per month
- Sales data (if Client is unable to leverage KayoCloud APIs) on a monthly basis
Client shall designate an employee or third party that is responsible for providing updated data to KayoCloud. Client must notify KayoCloud of any change to Client’s designated contact. KayoCloud will provide a process and instructions by which Client (or Client’s designated contact) may provide updated data to KayoCloud. KayoCloud shall have no obligation to update data unless updates are submitted within the given update period and in accordance with KayoCloud’s reasonable instructions. Client is solely responsible for the completeness and quality of data and/or images provided to KayoCloud. KayoCloud will accept the following file formats: .txt, .csv, .xls(x), .pdf, .jpeg, .png, .doc(x), and .rtf. KayoCloud does not accept file formats that are not designed to be human-readable (e.g., .xml, database extracts, etc.). KayoCloud’s preferred language for data is English. KayoCloud will use commercially reasonable efforts to interpret any data not provided in English, however KayoCloud may require Client to provide an alternate version of any non-English data. Client (or Client’s designated contact) is responsible for working with the KayoCloud team to approve the mapping from Client’s original source data to the appropriate KayoCloud data items. KayoCloud will have no responsibility for mapping issues discovered after Client has approved the mapping. Should the format of Client’s data change for any reason, Client (or Client’s designated contact) will be required to repeat the mapping process with the KayoCloud team (which may be subject to additional deployment fees). All data described in this Section 11 shall be deemed Client Content for purposes of this Agreement.
12. KayoCloud Market
a. Client represents that the Client Content it provides for use in the KayoCloud Market Service, as may be licensed in an Order (“KayoCloud Market”), with specific attention given to all information that will be publicly displayed through KayoCloud Market, shall be reasonably accurate. KayoCloud reserves the right to remove or modify publicly viewable Client Content in the event that it reasonably believes such Client Content is inaccurate or misleading. KayoCloud may also append, supplement, or modify Client Content displayed on KayoCloud Market in non-material respects, which may include digital watermarks, non-material changes to particular data points, or other enhancements related to privacy and security.
b. For the avoidance of doubt, KayoCloud shall not be a party to any real estate transaction that may involve or originate through Client's use of KayoCloud Market. KayoCloud Market is utilized for the marketing of real estate, but any transaction that may result from or be connected to the use of KayoCloud Market shall be on its own terms as between the applicable parties. Accordingly, KayoCloud does not represent or warrant the accuracy of any information submitted by a third party through KayoCloud Market.
c. KayoCloud and Client acknowledge that Client Content provided for use in KayoCloud Market shall remain the property of Client. KayoCloud shall have the right to utilize that Client Content within KayoCloud Market to market, distribute and promote the properties and listings on behalf of the Client. Data generated through the usage of KayoCloud Market by third parties (the "KayoCloud Market Data"), shall be owned by KayoCloud, which shall provide a worldwide, irrevocable, royalty-free license to Client to utilize provided KayoCloud Market Data for its own business purposes.
d. During the Subscription Term for KayoCloud Market, KayoCloud will provide Client with an irrevocable, perpetual, royalty-free, worldwide, non-transferrable license to display KayoCloud Intellectual Property in the form of image and video content provided by KayoCloud of Client properties for which KayoCloud Market is licensed (the "Visual Content") (i) on the web site owned and operated by Client, provided that in each case a link to the applicable page on KayoCloud Market accompanies such Visual Content; and (ii) in physical print materials, provided that attribution to KayoCloud Market is provided with each use, in each case in relation to the marketing of properties owned by Client, provided that in that no event shall Client remove or modify the Visual Content, including any watermarks or other security measures therein, and that such use complies with the reasonable branding guidelines that may be provided by KayoCloud from time to time. For the avoidance of doubt, Client may share links to the KayoCloud Market site, or pages within the KayoCloud Market site, or Visual Content, or any other means provided by KayoCloud for the sharing of KayoCloud Market content, without limitation, and may retain Visual Content to extent provided by KayoCloud prior to termination.
e. Client agrees to work in good faith with KayoCloud to (a) ensure that all information and content displayed on KayoCloud Market in relation to Client's listings is reasonably accurate and (b) resolve issues in a timely manner.
13. Service Levels.
KayoCloud shall use commercially reasonable efforts to maintain the online availability of the Services for a minimum of availability in any given month of 99.5% (excluding scheduled maintenance, force majeure and outages that result from any Client or third party technology issues). KayoCloud reserves the right to modify the Services from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes, and to modify the customer support provided in connection with the Services. KayoCloud further reserves the right to discontinue any feature of the Services at any time at KayoCloud’s sole, reasonable discretion. Any such modification or discontinuance during any Subscription Term shall not materially decrease the overall functionality of the Services.
14. Other Terms
a. Entire Agreement and Changes. This Agreement and all executed Order(s) constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Client is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise or inducement not included in this Agreement is binding.
No modification of this Agreement or any Order may be made except in a writing signed by both KayoCloud and Client. No waiver of this Agreement is effective against a party unless that party signs such waiver in writing. Client shall appoint an account owner who shall have the authority to add subscriptions to Client’s account by written request (including email), online/in-app request and other means which may be introduced by KayoCloud. Client shall be bound by all actions of its account owner. Client may change the account owner upon written notice to KayoCloud.
b. No Assignment. Neither party may assign or transfer this Agreement (including by operation of law) or an Order to a third party, except that this Agreement with all Orders may be assigned by either party, without the consent of the other party, as part of a merger, reorganization, change in control, or sale of substantially all of its assets.
c. Independent Contractors. The parties are independent contractors with respect to each other and nothing in this Agreement shall be deemed to establish any partnership, joint venture, employment, franchise or agency relationship. Further, neither party will have the power to bind the other without the other's prior written consent nor make any representation that it has any such power.
d. Force Majeure. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
e. Money Damages Insufficient. Any breach by a party of Sections 4 and 6 of this Agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach. Such party will not be required to post a bond or other security in connection with the granting of any such relief.
f. No Additional Terms; No Waiver. KayoCloud rejects additional or conflicting terms of any Client form-purchasing document. 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.
g. Order of Precedence. If there is an inconsistency between this Agreement and an Order, the Order prevails.
h. Survival of Terms. Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement will survive (including, without limitation, the confidentiality terms, the proprietary rights, the disclaimer, and the indemnity terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Severability. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
j. Feedback. By submitting ideas, suggestions or feedback to KayoCloud regarding the Service, Client agrees that such items submitted do not contain confidential or proprietary information, and Client hereby grants KayoCloud an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose, without any compensation or attribution to Client.
k. Reference Account. Client shall allow KayoCloud to use its name and logo in its marketing communications and materials, in accordance with Client’s trademark guidelines and policies.
l. Anti-Bribery.No payments or undue financial or other advantage of any kind shall be made by Client to advisers or agents, directly or indirectly, to any entity, government, corporation or other person for the purpose of improperly influencing the consideration of applications for a business activity or the receipt of any other benefits, including the obtaining or retaining of business. Each party shall: I. comply with all Applicable Laws relating to anti-bribery and/or anti-corruption;
II. not engage in any activity, practice or conduct which constitutes an offence under any applicable anti-bribery and/or anti-corruption legislation; and
III. notify the other party immediately if it becomes aware that, or has reason to believe that, it has breached his obligations under this paragraph.
m. Counterparts; Electronic Signature. This Agreement may be executed in two or more counterparts, each of which shall be considered an original and all of which together shall constitute one and the same agreement. The parties agree that this Agreement may be electronically signed. The parties agree that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
n. No Third-Party Beneficiaries.Except as otherwise expressly provided for in this Agreement, nothing in this Agreement, express or implied, is intended or shall be construed to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement. No person who is not a party to this Agreement shall have any right to enforce any term of this Agreement.
o. Governing Law and Venue. This Agreement is governed by the laws of the State of New York (without regard to conflicts of law principles) for any dispute between the parties arising out of or relating to the subject matter of this Agreement. The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts in New York, New York for any dispute between the parties arising out of or relating to the subject matter of this Agreement. Each party hereby expressly waives the application of New York General Obligation Law Section 5-903 to any renewal of this Agreement. Where Client is a resident of the EEA, any dispute between the parties arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration, which are deemed to be incorporated by reference into this Section 13. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be in London. The language to be used in the arbitral proceedings shall be English. Throughout this arbitration, the governing law of the contract shall be in the substantive law of the State of New York.
p. Digital Millennium Copyright Act. KayoCloud respects the intellectual property rights of others and attempts to comply with all relevant laws. KayoCloud will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
LSpire Legal: 2392 Nostrand Ave, Brooklyn, NY 11210. firstname.lastname@example.org
If you believe that your work has been copied on the KayoCloud platform or website in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Website where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
Please Note: You are entering into a legally binding agreement. These terms were last updated on January 4, 2021.