Terms

READ THESE TERMS BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDER DOCUMENT THAT INCORPORATES THE TERMS HEREIN, CUSTOMER (or “YOU”) AGREE TO BE BOUND BY THESE TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT AGREE TO ALL THESE TERMS, YOU MUST NOT ACCEPT AND YOU MAY NOT USE THE SERVICE.

Kaleo Software, Inc. (“Kaleo”) and the customer entity engaging the Services (hereinafter “Customer”) agree to these Terms and Conditions (“Agreement”) effective on the Services start date set forth in the order document (“Supplement”).

1. Definitions

“API” shall mean the programmatic access points to the Services, including scripting, widgets or executable applications and other materials made available by Kaleo to enable access with the API.

“Authorized Users” means any employees, independent contractors and consultants of Customer who have email addresses in the Customer Network and are authorized by Customer to access and use the Services pursuant to the Agreement.

“Customer Content” means the text, images, data and content provided by Customer and that resides in the Services environment.

“Customer Network” means Customer’s email network using the first and second level domain name(s) set forth on the Supplement or if no such domain is listed, the domain name used in the email address of the Customer’s designated administrator;

“Kaleo Technology” means the technology (including programming, methodologies, design, processes, and any desktop or mobile device applications, and APIs provided in connection therewith) that comprises and enables the Services, and all enhancements and improvements thereto.

“Services” means intra-company communication and knowledge base platform provided by Kaleo.

2. The Services

2.1 Services. Subject to the payment of all Fees set forth in the Supplement, Kaleo hereby grants to the Customer a non-exclusive, non-transferable right to access the Services during the term identified on the Supplement solely for the Customer’s business operations and otherwise subject to the terms of this Agreement. Promptly after the Services Start Date set forth on the Supplement, Kaleo will send instructions to the designated administrator regarding the administrative tools made available to Customer.

2.2 Customer Responsibilities. Customer undertakes that:

2.2.1 it is responsible for all use of the Services, include use of the Services by any third party it authorizes;

2.2.2 it will ensure that each Authorized User keeps a unique email address and keeps his password confidential issue;

2.2.3 it will not allow more than one individual as an Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services; and

2.2.4 it be solely responsible for procuring and maintaining its network connections and telecommunications links and for resolving all problems, conditions, delays, failures arising from or relating to its network connections or telecommunications links.

2.3 Prohibitions; Restrictions. The Customer shall not:

2.3.1 take any action that imposes an unreasonable or disproportionately large load on system infrastructure, or interfere with the proper working of the Services (including to use or launch any automated system that accesses the Services in a manner that sends more request to the Kaleo servers than a human can reasonably produce by using a conventional on-line web browser); or attempt to bypass or defeat the security protocols and measures embodied in the Services, or attempt to decipher any transmissions to or from the servers running the Services;

2.3.2 copy, modify, duplicate, create derivative works from, frame, mirror, republish, display, transmit, or distribute all or any portion of the Services;

2.3.2.1 attempt to reverse compile, disassemble, reverse engineer all or any part of the Services;

2.3.3 access all or any part of the Services in order to build a product or service competitive to the Services;

2.3.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except its Authorized Users; or

2.3.5 insert or permit introduction of any Malicious Code (defined below) into the Services or its systems and software used to deliver the Services (collectively “System”). For purposes of this provision, “Malicious Code” means (i) any code, program, or process the intended purpose or effect of which is to damage or interfere with the operation of the System or to halt or disable the operation of the System, or (ii) any device, method, or token that permits a person to circumvent the normal security of any part of the System.

2.4 Changes; No exclusivity. Except as set forth in the Supplement, Kaleo reserves the unqualified right to change on a prospective basis the features and functions of the Services. New products or services introduced by Kaleo may be subject to terms and restrictions not set forth herein. Nothing in this Agreement will be interpreted or construed to prohibit or restrict Kaleo’s right to license, sell, or otherwise make available the Services to any third party or from developing, using, selling or licensing all products and/or services.

2.5 Access to the Services

2.5.1 Customer is solely responsible for providing, installing and maintaining at its expense all equipment, facilities and services necessary to enable access to the Services, including without limitation, all computer hardware and software, network system, communication Services and Internet access. Customer is also solely and fully responsible for the use or breach by all Authorized Users as if performed by Customer. Customer will immediately notify Kaleo of any unauthorized use of any user account or any other breach of security known to it.

3. Services Performance

3.1 By Kaleo. Kaleo warrants that the Services will operate in substantial conformance with the support level document referenced or provided in the Supplement (the “SLA”). If the Services provided to Customer for any given month during the Term were not performed as provided in the SLA, Customer must provide written notice to Kaleo as specified in the SLA no later than five business days after the last day of that particular month or within such other period stated in the Supplement to invoke the remedies set forth therein. . . If Customer has procured the Services for trial purposes, Services are provided “as is” and Kaleo does not offer any warranties whatsoever for such use.

3.2 Disclaimer. WITHOUT LIMITING THE FOREGOING, KALEO (I) DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE NOR THAT THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS; AND (II) IS NOT RESPONSIBLE FOR ANY DELAYS, FAILURES, OR ANY OTHER LOSS OR DAMAGE FROM THE USE OF THE SERVICES, INCLUDING FROM UNAUTHORIZED ACCESS, USE, ALTERATION OR DISCLOSURE OR TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS. EXCEPT AS SET FORTH IN THIS SECTION, CUSTOMER UNDERSTANDS THAT THE SERVICES ARE PROVIDED “AS IS” AND AN “AS AVAILIABLE” BASIS AND KALEO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INFRINGEMENT OR NONCOMPLIANCE IN THE SERVICES, 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.

4. Proprietary Rights

4.1 Ownership. The Services and the Kaleo Technology, and all intellectual property rights therein, are and shall remain the sole and exclusive property of Kaleo. Nothing in the Agreement confers on Customer or Authorized Users any right of ownership or interest therein.

4.2 Customer Content. As between Customer and Kaleo, Customer retains all right, title and interest in and to the Customer Content. Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Content. Subject to the terms and conditions of this Agreement, Customer hereby grants Kaleo for the duration Services are provided a limited, non-exclusive, royalty-free license to reproduce, display, store, archive, and index the Customer Content solely to provide the Services on behalf of Customer. No title to or ownership of the Customer Content is transferred to Kaleo.

4.3 Responsibility. Customer is solely responsible for the Customer Content that Authorized Users upload, publish, display, link to or otherwise make available on the Services and Customer acknowledges that it is solely responsible for prohibiting copyright infringement and infringement with respect to other intellectual property rights with respect to the Customer Content. Under no circumstances will Kaleo be liable for any of Customer Content in providing Services hereunder.

4.4 Confidentiality. The business terms for use of the Services shall be kept confidential by Customer. The Services contain login authentication and security protocols to prevent unauthorized disclosure and to maintain the confidentiality of Customer Content. Notwithstanding the foregoing, Customer acknowledges that it is responsible for all use of the Services by its Authorized Users, including to ensure that that each Authorized User keeps his login and password information confidential and to disallow more than one individual as an Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services.

5. Compensation

5.1 Fees. Customer shall pay Kaleo the fees for the Services (the “Fees”) in accordance with the Supplement. All Fees due under the Agreement are non-cancelable and sums paid nonrefundable. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law that Kaleo must pay based on the Services ordered, except for taxes based on Kaleo’s income.

5.2 Payment Terms. Customer shall pay all Fees within thirty (30) days of the date of invoice. In the event Customer fails to pay any amount under the Agreement when due, or violates any of the terms set of this Agreement, in addition to any other remedies available at law or in equity, Kaleo will have the right, in its sole discretion, to suspend Customer’s use and access to the Services until such breach is cured and Customer will pay a late fee equal to one-and-one-half percent (1.5%) per month or the maximum amount allowed by law, if less, on all past due amounts. Prior to a suspension under this paragraph, Kaleo will provide Customer with written notice and opportunity to cure to cure such breach within 5 days of such notice, except in the case where such breach is not susceptible to cure.

5.3 In the event of any action by Kaleo to collect any amount not paid when due, Customer will pay or reimburse Kaleo’s costs of collection (including, without limitation, any attorneys’ fees and court costs).

5.4 Additional Users. In accordance with the Supplement, Kaleo will bill Customer for Authorized Users who are authorized to use the Services. Fees for each additional Authorized User shall be invoiced during the month following such authorization or registration. Notwithstanding any terms to the contrary in this Agreement, except as set forth in the Supplement, Kaleo may modify its pricing upon notice and such pricing changes will be effective as of the directly subsequent subscription period.

6. Privacy; Tracking

6.1 Privacy Policy. Use of the Services is subject to the terms of the Kaleo Privacy Policy found on the Kaleo website. Customer hereby acknowledges and agrees to the terms thereof with respect to any personal information of Customer collected in connection with the Services.

6.2 Monitoring. Kaleo will have the right to review and monitor all use of the Services to ensure compliance with the terms of this Agreement and support use of the Services. Kaleo will also have the right to analyze user behavior as a measure of interest in, and use of, the Services, both on an individual basis and in the aggregate, and otherwise to collect and create metadata about Customer’s use of the Services; such metadata will only be disclosed to third parties only in an anonymized and aggregate format. Kaleo reserves the right to remove Customer Content at any time.

7. Term and Termination

7.1 Term. The initial term of the Agreement will commence on the Services Effective Date set forth in the Supplement and, unless specified otherwise in the Supplement, will continue for one year and will automatically renew for further annual terms of 12 months each unless terminated by notice no later than thirty (30) days prior to the end of the term or otherwise in accordance with this section. The subscription shall be automatically renewed for subsequent one-year periods, unless either party elects not to extend by written notice given at least thirty (30) days prior to the end of any term.

7.2 Termination by Kaleo. The Agreement may be terminated by Kaleo (i) if Customer defaults in the timely payment of any amount due Kaleo and fails to cure within ten (10) days of receipt of written notice; (ii) in the event of a material breach by Customer of any other provision of the Agreement and Customer fails to correct such breach within thirty (30) days of written notice; or (iii) upon the bankruptcy, reorganization or assignment for the benefit of creditors of Customer.

7.3 Termination by Customer. The Agreement may be terminated by Customer in the event of a material breach by Kaleo of the Services performance obligations set forth in section 3.1 of the Agreement, and following notice from Customer, Kaleo fails to correct such breach within thirty (30) days of written notice.

7.4 Effect of Termination. Upon termination, the rights granted to Customer with respect to the Services will terminate and Customer shall promptly pay Kaleo any amounts still payable for Customer’s use of the Services through the effective date of the termination. Kaleo will provide Customer with access to their respective Customer Content until twenty (20) days following the date of termination, at which point such access shall cease. It is Customer’s sole responsibility to download or delete any Customer Content following a termination; Kaleo has no obligation to make such data available more than twenty (20) days following the date of termination or to maintain copies of such Customer Content other than for archival purposes. No refunds of Fees shall be made to Customer in connection with any termination.

7.5 Survival. Sections of this Agreement that, by their terms, require performance after the termination or expiration of this Agreement will survive.

8. Limitations of Liability

NEITHER PARTY NOR ITS DIRECTORS, EMPLOYEES OR LICENSORS SHALL BE LIABLE OT THE OTHER FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE THE SERVICES, UNDER THIS AGREEMENT. THIS PARAGRAPH HOWEVER SHALL NOT APPLY TO A BREACH BY CUSTOMER OF KALEO’S INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SERVICES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KALEO ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S ACCESS TO AND USE OF THE SERVICES; (II) ANY ERRORS OR OMISSIONS IN, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF THE SERVICES. IN NO EVENT SHALL KALEO, ITS DIRECTORS, EMPLOYEES, AFFILIATES OR LICENSORS BE LIABLE TO CUSTOMER OR AUTHORIZED USERS FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AGGREGATE AMOUNT CUSTOMER HAS PAID TO KALEO HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM (“LIABILITY CAP”). THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF KALEO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. NOTWITHSTANDING THE FOREGOING, THE OBLIGATION TO INDEMNIFICATION SHALL BE EXCLUDED FROM THE LIABILITY CAP.

9. Indemnification

9.1 By Customer. Customer will defend Kaleo and its subsidiaries and affiliated companies, and their employees, officers and directors, from and against all claims, and pay the damages, losses, liabilities, and expenses (including but not limited to attorney’s fees) awarded by the court to the third party claiming infringement or a settlement agreed to in connection with such claim, arising from: (i) all matters related to Consumer Content; and (ii) Customer’s or an Authorized User’s alleged violation of the terms of this Agreement or an alleged violation of law.

9.2 By Kaleo. Kaleo will defend Customer and its subsidiaries, and their employees, officers and directors, from and against all third party asserted claims that the Services infringe a US patent issued as of the Effective Date, or a trademark or copyright right of a third party, and pay the damages, losses, liabilities, and expenses (including but not limited to attorney’s fees) awarded by the court to the third party claiming infringement or a settlement agreed to in connection with such third party claim. Kaleo will have no liability for any infringement claim based on the combination or use of the Services with any other software, program or device not provided by Kaleo if such infringement would not have arisen but for such use or combination. If the Services become, or, in Kaleo’s opinion are likely to become, the subject of such a claim, Kaleo shall have the right to (i) obtain for Customer the right to continue using the Services, (ii) replace or modify aspects of the Services so that they become non-infringing, or (iii) terminate the Services and provide a prorated refund to Customer of the Fees paid for the Services for the portion of the Term remaining at the time of such termination. THE FOREGOING STATES KALEO’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.

9.3 Procedure. The foregoing indemnities are contingent on the indemnified party: (a) promptly notifying the indemnifying party of any claim; (b) permitting the indemnifying party to control and manage the defense of any claim (and any settlement); and (c) cooperating with the indemnifying party in the defense of any claim (and any settlement). The indemnifying party will not settle or resolve any such claim in a manner that imposes any liability or obligation on the indemnified party without the advance written approval of the indemnified party, which must not be unreasonably withheld.

10. Publicity/Press

Each party shall be allowed to refer to the other party as a customer of or service provider to (as the case may be) on its website and in marketing materials. Neither party shall issue any press release which refers to the other party, without the prior written approval of the other party. Notwithstanding the foregoing, the parties agree to consider in good faith such press releases or other public announcements regarding this Agreement, including through such vehicles as case studies, blog posts, and webinars as may be proposed by the other party, provided that no such public disclosure shall be made without the prior written consent of the other party.

11. Miscellaneous

11.1 Arbitration; Governing Law. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope and applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles County, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.. This Agreement shall be construed and controlled by the laws of the state of California, excluding its conflict of law rules.

11.2 Relationship. Nothing in this Agreement shall be deemed to constitute a joint venture, partnership, agency, representative, or employment relationship between the parties.

11.3 No Waiver; Severability. Failure by either party to enforce any provision of this Agreement shall not be deemed to be a waiver of future enforcement of that or any other provision or right granted hereunder. Should any term of this Agreement be declared to conflict with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, then (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect.

11.4 Conflict. If there is a difference between the terms of this Agreement, the Supplement or any Kaleo terms of use set forth on Kaleo’s web site, this Agreement will govern with respect to use of the Services.

11.5 Force Majeure. If at any time during this Agreement, either party is prevented from or hampered or interrupted or interfered with in any manner in fully performing its duties hereunder, other than payment obligations, by reason of any act of God, earthquake, flood, fire, epidemic, explosion, casualty, riot, civil disturbance, war or armed conflict, unavoidable delay in obtaining licenses, permissions or consents, or any other cause beyond the reasonable control of the affected party (all of the being herein referred to as an “event of force majeure”), then the obligations of the party affected by such event of force majeure shall be suspended and such non-performance shall not be deemed to be a breach of this Agreement.

11.6 Assignment. Neither party will have the right to assign this Agreement, in whole or in part, by operation of law or otherwise, without the other party’s express prior written consent, except that either party may assign this Agreement (without written consent) in connection with a merger, consolidation, reorganization, or sale of all or substantially all of its assets.

11.7 Notices. Any notices to be given hereunder by either party to the other may be given either by personal delivery or facsimile transmission, or by overnight express carrier with delivery receipt tracking (e.g., Federal Express, UPS, etc.). Mailed notices shall be addressed to the parties at the addresses appearing in the first paragraph of this Agreement. All notices will be deemed communicated as of the actual receipt.

11.8 Agreement. This Agreement supersedes any prior understanding or written or oral agreements between the parties and constitutes the entire agreement between Kaleo and Customer pertaining to the subject matter hereof. This Agreement is not valid or binding until signed by a duly authorized representative of both parties. No amendment, modification, extension, release, discharge or waiver of this Agreement, or of any provision hereof, shall be valid or binding unless in writing and signed by an authorized officer of the party against which such instrument is sought to be enforced.