Terms of Service
Kubit AI, Inc.
Version Date: May 22, 2020BY SIGNING OR OTHERWISE INDICATING YOUR ACCEPTANCE OF ANY KUBIT ORDER REFERENCING OR INCORPORATING THESE TERMS OF SERVICE OR BY OTHERWISE ACCESSING OR USING ANY KUBIT SERVICES, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE AND AGREEING TO BE BOUND BY THEM.
These Kubit AI Terms of Services (the “Terms of Service”), are made and entered into by and between Kubit AI, Inc. (“Kubit”), a Delaware corporation, and the entity or person placing an order for or accessing any Kubit Services (as defined below) (“Customer”). The Terms of Service consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced herein. The “Effective Date” of the Terms of Service is the earlier of (i) Customer’s initial access to any Kubit Services through any online provisioning, registration or order process and (ii) the effective date of the first Customer Order referencing or incorporating the Terms of Service. The Terms of Service will govern Customer’s initial Order on the Effective Date as well as any future Orders made by Customer that reference the Terms of Service.
Section 1. Kubit Services.
1.1. Kubit Services. Kubit will, during the Subscription Term (as defined below) of an applicable Order: (a) host, operate and maintain the Kubit analytics platform, which stores, interprets, processes, modifies and analyzes Customer Data (as defined below) (the “Kubit Platform”) as set forth in one or more order forms executed by both Kubit and Customer (each an “Order”);
(b) assist Customer’s authorized administrative users in configuring the Kubit Platform to enable it to function with Customer’s computer system (the “Customer System”);
(c) allow the Customer System to access the Kubit Platform, upload Customer Data to the Kubit Platform and access Customer Data through the Kubit Platform pursuant to the Terms of Service and the terms of the applicable Order;
(d) assign a Kubit account manager to Customer, who will be available by email and online chat between 8am and 5pm Pacific time on business days to address questions regarding access to the Kubit Platform and configuration thereof and will respond to support inquiries within one (1) business day after receipt thereof; and
(e) provide initial training to Customer as agreed in the applicable Order and any additional support re: use of the Kubit Platform requested by Customer that is not covered by clause (d) (“Additional Technical Support”) at the hourly rate set forth in the applicable Order (collectively, the “Kubit Services”). The provision of the Kubit Services shall be in accordance with and subject to the Terms of Service and the terms of the applicable Order. Purchase of a subscription to the Kubit Services hereunder is not contingent upon the delivery of any future functionality or features.
1.2. Subscriptions. Kubit Services are purchased as subscriptions and may be accessed only in accordance with the applicable Order. Additional data processing and features may be added during the applicable Subscription Term by execution of an additional Order.
Section 2. Customer Matters.
2.1. Responsibilities. Customer will cooperate with and assist Kubit as reasonably necessary and helpful in connection with the Kubit Services, which shall include but shall not be limited to, usage, maintenance and management of Customer’s API(s). Customer shall be solely responsible for providing user identification and login access to the Kubit Platform through the Customer System to all Customer employees and consultants who are authorized by Customer to access the Kubit Platform (“Customer Users”) and for maintaining the confidentiality of log-in accounts and passwords for Customer Users. Customer shall not provide Kubit with any personally identifiable information and shall provide advance notification to Kubit of any regulatory requirements applicable to any Customer Data provided to Kubit. Customer will immediately notify Kubit of (a) any unauthorized use of any Customer or Customer User password or secret key, (b) any data outage or change in data format that could compromise functionality of the Kubit Platform, or (c) any other breach of security known to Customer or any use of the Kubit Platform in violation of the Terms of Service or the terms of the applicable Order.
2.2. Restrictions. Customer and the Customer Users shall use the Kubit Services solely for the purposes contemplated by the Terms of Service and the terms of the applicable Order and shall not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Kubit Services available to any third party; (b) interfere with or disrupt the integrity or performance of the Kubit Services or the data contained therein; (c) attempt to gain unauthorized access to the Kubit Services or their related systems or networks; (d) modify, copy or create derivative works based on the Kubit Technology (as defined below); or (e) dissemble, reverse engineer or decompile the Kubit Technology.
Section 3. Payments.
3.1.Fees. Customer shall pay Kubit for the Kubit Services in accordance with the fees, rates, charges, reimbursable expense and other amounts as described in the applicable Order (the “Fees”). Fees will be invoicable upon execution of the Order and on start of any renewal Subscription Term. Customer shall provide Kubit with all pre-launch activity and data reasonably necessary to measure and calculate the Fees. Amounts will be due thirty (30) days from date of invoice. Any amounts not paid by Customer to Kubit when due shall be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer shall reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Kubit to collect any amount that is not paid when due.
3.2. Taxes. The amounts payable to Kubit under this Agreement do not include any taxes, customs, duties, fees or other amounts assessed or imposed by any governmental authority. Customer shall pay or reimburse Kubit for all such amounts (other than taxes imposed on Kubit’s net income) invoiced by Kubit.
Section 4. Proprietary Rights.
4.1. Ownership. The Kubit Technology (as defined below), including all intellectual property rights therein, is owned by and will be the exclusive property of Kubit. No title to or ownership of the Kubit Technology is transferred to Customer under the Terms of Service or the terms of any Order, including, without limitation, any Kubit Technology that resides on Customer’s computer servers or other computers, and no license, express or implied, is granted. “Kubit Technology” means the Kubit Platform, Kubit servers, products, computer programs, software, source code, object code, development tools, techniques, concepts, know-how, algorithms, methods, mechanics, processes, procedures, designs, engines, databases, specifications, programmer notes, works of authorship, content, audio clips, video clips, graphics, images, website templates, inventions (whether or not patentable), invention disclosures, discoveries, works of authorship (whether or not copyrightable), pre-built Kubit-designed user interface components included as part of the Kubit Platform, and any modifications, improvements, or derivative works related thereto, and any other technology incorporated into and/or used by Kubit in the performance of the Kubit Services. The Customer Data (as defined below) is and will be the exclusive property of Customer, provided however, that Kubit will have a license to use such Customer Data during the Term as set forth herein.
4.2. Customer Data. Customer grants to Kubit a license during the Term to use, reproduce, and make derivative works of and otherwise use the Customer Data for the purpose of providing the Kubit Services to Customer. “Customer Data” means any data (including both historic and current website and mobile event data) submitted by Customer to the Kubit Platform and the related analytics data derived from such data by the Kubit Platform. Kubit may also, during and after the Term, use, reproduce and prepare derivative works of the Customer Data for internal purposes, including product development.
Section 5. Marketing.
Customer agrees to take commercially reasonable steps to cooperate with Kubit in marketing the Kubit Service. Kubit’s marketing may include but is not limited to: (a) making press releases; (b) creating case studies; and (c) estimating return on investment. Customer hereby grants to Kubit a non-exclusive, nontransferable, worldwide, royalty-free right and license during the Term to use the Customer trademarks to identify Customer as a Kubit customer, and in other reasonable marketing materials pre-approved in writing by Customer.
Section 6. Term and Termination.
6.1. Term. The term of the Terms of Service will continue until terminated in accordance with Section 6.3 or 6.4 below (the “Term”).
6.2. Term of Orders. Orders commence on the Subscription Start Date specified in the applicable Order and continue for the Subscription Length specified therein. Except as otherwise specified in the applicable Order, all Orders shall automatically renew for additional periods equal to the expiring subscription term or one (1) year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Term. The initial subscription term and each renewal subscription term is referred to herein as a “Subscription Term”. The pricing during any such renewal Subscription Term shall be the same as that during the prior Subscription Term unless Kubit has given Customer notice of a pricing increase at least sixty (60) days before the end of such prior Subscription Term, in which case the pricing increase shall be effective upon renewal and thereafter.
6.3. Convenience. Either party may terminate the Terms of Service upon thirty (30) days written notice to the other party if the terms of all Orders have expired or been terminated.
6.4. Breach. If either party commits a material breach or default of any of the Terms of Service or any Order, then the other party shall give the defaulting party written notice of the breach or default with not less than thirty (30) days to cure such breach. If the breach thereafter remains uncured, these Terms of Service and all Orders hereunder may be terminated by the non-breaching party upon written notice to the breaching party. In the event of termination due to Kubit’s material breach of the Terms of Service or any Order, Kubit will refund to Customer any pre-paid but unaccrued Fees paid by Customer to Kubit. In the event of termination by Kubit due to Customer’s material breach of the Terms of Service or any Order, Kubit shall be entitled to retain any pre-paid, but unaccrued Fees paid by Customer to Kubit.
6.5. Effect of Termination. Upon termination of the Terms of Service: (a) Kubit will have no obligation to perform any Kubit Services under the Terms of Service or any Order after the effective date of the termination and all Orders under the Terms of Service will immediately terminate as of the date of termination; (b) Customer will pay to Kubit any Fees payable under the Terms of Service prior to the effective date of the termination; and (c) the parties’ respective rights and obligations under Sections 3, 4, 6, 7, 8, and 9 will survive the termination the Terms of Service.
6.6. Suspension. If Customer has breached the Terms of Service or any Order, Kubit also may immediately suspend any Kubit Services upon written notice to Customer. Any such suspension may continue until Customer’s breach of the Terms of Service or any Order has been cured.
Section 7. Infringement.
7.1. Infringement. Kubit will indemnify Customer from any third-party claim that the Kubit Technology infringes any United States patent, copyright or trademark if Customer: (a) promptly gives Kubit written notice of the claim; (b) authorizes Kubit to control the defense of the claim; and (c) provides such assistance as Kubit may reasonably request. If Kubit determines in its discretion that the Kubit Technology or the Kubit Services may infringe on the intellectual property rights of a third party, Kubit may use commercially reasonable efforts to either: (y) acquire the right for Customer to continue to use such Kubit Technology in accordance with the applicable license; or (z) provide a correction, modification or enhancement with substantially the same functionality to avoid or correct the infringement. If Kubit believes it cannot accomplish (y) or (z) above within a reasonable period and at a commercially reasonable cost, then Kubit may refund an equitable portion of the amounts paid by Customer to Kubit for the Kubit Services and terminate the Terms of Service and all Orders. In no event shall Customer settle any claim of infringement for which indemnification may be due hereby without the consent of Kubit. The foregoing shall be Customer’s sole and exclusive remedy with respect to any infringement claim.
7.2. Exclusions. Kubit’s indemnification obligations under Section 7.1 do not apply to any infringement resulting from any (a) Customer Data; (b) use not in accordance with the Terms of Service or any Order; (c) modification, damage, or misuse of the Kubit Technology by Customer or any third party; or (d) combination of the Kubit Technology with any other goods, services or items provided by Customer or any third party. Kubit warrants that it makes industry standard efforts to ensure that the Kubit Technology is free from bugs, errors, defects, viruses and deficiencies.
7.3. DISCLAIMER. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF KUBIT AND THE REMEDIES OF CUSTOMER SET FORTH IN THE TERMS OF SERVICE ARE EXCLUSIVE AND IN LIEU OF, AND CUSTOMER HEREBY WAIVES, RELEASES AND DISCLAIMS, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF KUBIT AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST KUBIT, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
Section 8. Confidentiality.
Except as expressly provided herein, each party that receives (the “Receiving Party”) nonpublic information and know-how of the other party (the “Disclosing Party”) disclosed to or acquired by the Receiving Party pursuant to or in connection with the Kubit Services, which is either designated as proprietary and/or confidential or is of such nature that a reasonable person in like circumstances would understand such information to be proprietary and/or confidential (“Confidential Information”), will retain such information in confidence. Each party will retain in confidence the terms of each Order under the Terms of Service, provided, that each party may disclose the terms thereof to its legal and financial advisors in the ordinary course of its business provided that they are subject to the confidentiality obligations no less protective than those contained herein. Each Receiving Party agrees to use reasonable best efforts to protect the Confidential Information of the Disclosing Party and, in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. The foregoing restrictions will not apply to any information that (a) was known by the Receiving Party prior to disclosure thereof by the Disclosing Party through no fault of the Receiving Party or wrongdoing of a third party, (b) was in or entered the public domain through no fault of the Receiving Party or wrongdoing of a third party, (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality, (d) is required to be disclosed by applicable law (but in such event, only to the extent required to be disclosed), (e) is independently developed by the Receiving Party without reference to any Confidential Information of the Disclosing Party, or (f) is reasonably necessary to enforce the terms of the Terms of Service or any Order. Upon request of the Disclosing Party, or in any event upon any termination or expiration of the Term, each Receiving Party will return to the other party all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other party. Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section 8.
Section 9. Miscellaneous.
9.1. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE, CONSEQUENTIAL, SPECIAL OR OTHER INDIRECT DAMAGES, AND IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THE TERMS OF SERVICE OR ANY ORDER EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO KUBIT UNDER THE TERMS OF SERVICE DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
9.2. Compliance with Laws. In its performance under the Terms of Service and all Orders, each party will comply with all applicable laws and other legal requirements.
9.3. Assignment. Neither party may assign the Terms of Service or any Order, in whole or in part, without the other party’s prior written consent, which consent will not be withheld unreasonably, except that Kubit may assign the Terms of Service and all Orders without consent to any entity in connection with any merger, consolidation, asset purchase, change of control or other reorganization involving Kubit.
9.4. Governing Law; Jurisdiction. The Terms of Service and all Orders will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware, without reference to its choice of law rules to the contrary. The parties consent to the nonexclusive jurisdiction of the state and federal courts located in the county of Alameda, California.
9.5. Notice. Any notice shall be in writing and given or made by means of certified or registered mail, express mail or other overnight delivery service, or hand delivery, proper postage or other charges paid, or email and addressed or directed to the respective parties as follows or at such other address as may be given in writing by either party to the other in accordance with this section. If to Kubit, to Kubit AI, Inc., 39300 Civic Center Dr, Suite 280, Fremont, CA 94538, Attention: Alex Li / CEO, Email: email@example.com. If to Customer, to the notice address set forth in the most recent Order. Such notice shall be deemed to have been given or made when actually received as specified above.
9.6. Entire Agreement; Modifications. The Terms of Service and any Orders constitute the entire agreement, and supersedes any and all prior agreements, between Kubit and Customer with respect to the Kubit Services and the Kubit Technology. From time to time, Kubit may modify the Terms of Service by posting a revised version on its website at https://www.kubit.ai/terms-of-service (or such successor URL as may be designated by Kubit); provided that Kubit may not change the price, quantity or similar financial terms contained in any Order without the written consent (or click through approval) of Customer. Unless otherwise specified by Kubit, changes become effective for Customer upon renewal of the then-current Subscription Term (as defined below) or entry into a new Order after the updated version of the Terms of Service goes into effect. Except as expressly set forth in this Section 9.6, no amendment, modification or waiver of any of the Terms of Service or any Order will be valid unless set forth in a written instrument signed by an officer of the party to be bound thereby. No terms or conditions stated in a Customer purchase order or any other Customer order documentation other than an Order shall be incorporated into or form any part of the Terms of Service, and all such terms or conditions shall be null and void, notwithstanding any language to the contrary therein, whether signed or delivered before or after the Effective Date.