Terms of Service
These Terms of Service (this “Agreement”) constitutes a legally binding contract between KodaCloud Inc., a Delaware corporation (“Company,” “we,” “us,” “our”) and you with respect to your use of our website (the “Website”). It is important that you carefully read and understand the terms and conditions of this Agreement. BY ACCESSING OR USING THE WEBSITE, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE WEBSITE. If you access or use the Website on behalf of a company, principal, or other entity, you represent that you have authority to bind such entity and its affiliates to this Agreement and that it is fully binding on them. In such case, the term “you” will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Website. Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.
1. Changes to this Agreement
We reserve the right to, at any time, with or without cause:
change the terms and conditions of this Agreement;
change the Website, including eliminating or discontinuing any service or other feature of the Website; or
deny or terminate your use of and/or access to the Website
Any changes we make will be effective immediately upon our making such changes available on the Website or otherwise providing notice thereof. You agree that your continued use of the Website after such changes constitutes your acceptance of such changes. Be sure to return to this page periodically to ensure familiarity with the most current version of this Agreement.
2. Network Services
If you are a Company network services customer, your use of Company’s network services is subject to the terms and conditions of the Network Services Agreement that you entered into in connection with such services. The terms of the Network Services Agreement can be found here: http://KodaCloud.com/terms. If and when you register with or provide information to the Company, you agree to: (a) provide accurate, current, and complete information as prompted (including your e-mail address) and (b) maintain and update your information (including your e-mail address) to keep it accurate, current, and complete. You acknowledge that, if any information provided by you is untrue, inaccurate, not current, or incomplete, we reserve the right to terminate this Agreement and your use of the Website. By providing the Company with your email address or other contact information, you consent to our use of this information to send you Website-related notices and other administrative notices, including any notices required by law.
You are solely responsible for the activity that occurs on your account. You must keep your account credentials (including username and password) secure at all times. You may not share your account with any third parties without the Company’s prior written consent unless such third party has separately entered an agreement with the Company permitting it to access your account. You must notify the Company immediately of any breach or suspected breach of security or unauthorized use of your account. The Company will not be liable for any losses caused by any unauthorized use of your account.
You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.
3. Rules Governing Your Use of the Website
You may not use the Website, or assist or encourage any other party, to engage in any of the following prohibited activities:
Copying, framing, or mirroring any part of the Website;
Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling, or otherwise attempting to extract the source code of the software underlying the Website or any part thereof, unless expressly permitted or required by law, and in any case, without providing prior written notice to the Company;
Publishing, transmitting, distributing, or storing content, material, information, or data that: (a) is illegal, obscene, defamatory, libelous, threatening, harassing, abusive, or hateful or that advocates violence or threatens the health of others; (b) is harmful to or interferes with the Website or any third party’s networks, equipment, applications, services, or websites (e.g., viruses, worms, Trojan horses, etc.); (c) infringes, dilutes, misappropriates, or otherwise violates any privacy, intellectual property, publicity, or other personal rights including, without limitation, copyrights, patents, trademarks, trade secrets, or other proprietary information (including unauthorized use of domain names); or (d) is fraudulent or contains false, deceptive, or misleading statements, claims, or representations (such as “phishing”);
Attempting to disrupt, degrade, impair, or violate the integrity or security of the Website or the computers, services, accounts, or networks of any other party (including, without limitation, “hacking,” “denial of service” attacks, etc.), including any activity that typically precedes attempts to breach security such as scanning, probing, or other testing or vulnerability assessment activity, or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of the Company internet protocol space;
Copying, distributing, or disclosing any part of the Website in any medium, including without limitation by any automated or non-automated “scraping”;
Using any automated system, including, without limitation, “robots,” “spiders,” “offline readers,” etc., to access the Website in a manner that sends more request messages to the Company than a human can reasonably produce in the same period of time by using a conventional web browser;
Taking any action that imposes, or may impose, at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
Collecting or harvesting any personally identifiable information, including account names, from the Website;
Using the Website for any commercial solicitation purposes;
Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
Bypassing the measures we may use to prevent or restrict access to the Website, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Website or the content therein;
Violating any applicable law, statute, ordinance, or regulation, or encourage any conduct that could constitute a criminal offense or give rise to civil liability;
Transmitting any trade secret or other material, non-public information about any person, company, or entity without the authorization to do so;
Removing any copyright, trademark, or other proprietary rights notices contained in or on the Website;
Sublicensing, selling, renting, leasing, transferring, assigning, or conveying any rights under this Agreement to any third party; and/or
Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine, or display any packets used to communicate between the Website’s servers or any data not intended for you.
4. Intellectual Property
A. Your Rights. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Website solely for your own internal use. The Company reserves all rights not expressly granted herein in the Website. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel, or otherwise.
B. B. Feedback. You may choose to or we may invite you to submit comments, suggestions, feedback, or ideas about the Website, including, without limitation, about how to improve the Website or our products (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited and without restriction. We are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. The Company will be free to use, disclose, reproduce, license, distribute, modify, perform, display, and exploit the Feedback you provide, without any restriction of any kind on account of intellectual property rights or otherwise. You further acknowledge that, by acceptance of your submission, the Company does not waive any rights to use similar or related ideas previously known to the Company, or developed by its employees, or obtained from sources other than you
C. Trademarks. The trademarks, logos, and service marks displayed on the Website (collectively, the “Company Trademarks”) are the registered and unregistered trademarks of the Company, the Company’s licensors and suppliers, and/or others. Nothing contained in this Agreement or the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Company Trademark(s) without the express written permission of the Company, the Company’s licensors or suppliers, or the third-party owner of any such Company Trademark.
5. Third-Party Links
6. No Use by Children Under 13
You hereby affirm that you are over the age of thirteen (13), as the Website is not intended for children under 13. If you are under 13 years of age, then you may not use the Website. You further affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement.
7. Term & Termination
This Agreement is effective from the date on which you first access the Website and shall remain effective until terminated in accordance with its terms. The Company may immediately terminate this Agreement, and/or your access to and use of the Website, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. The Company may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement by either party, your right to use the Website shall immediately cease and you shall cease all use of the Website. Upon termination or expiration of this Agreement for any reason, Sections 1, 2, 3, 4(B), 4(C), and 5–14 shall survive.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Website, or any part of portion thereof. Nothing in this Agreement shall be construed to obligate the Company to maintain and support the Website, or any part or portion thereof, during the term of this Agreement.
THE WEBSITE IS PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE WEBSITE IS CURRENT AND/OR UP-TO-DATE ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE WEBSITE, OR YOUR USE OF THE WEBSITE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE WEBSITE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE WEBSITE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE WEBSITE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEBSITE, AND YOUR RELIANCE THEREON.
9. Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER THE COMPANY NOR ANY OF ITS LICENSORS, SPONSORS, AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE WEBSITE, AND/OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. THE COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You (and also any third party for whom you operate an account on the Website) agree to fully indemnify, defend (at the Company’s request), and hold the Company, our licensors, suppliers, agents, successors, and assigns, and our and their directors, officers, employees, consultants, and other representatives (collectively, the “Company Parties”) harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from: (a) your actual or alleged breach of this Agreement; (b) any allegation that any information or other materials you submit to us or transmit to the Website infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with the Website or other websites to which the Website is linked; (d) your negligence or willful misconduct; (e) your use of the results, content, data, or information provided via the Website; (f) any service or product offered by you in connection with or related to your use of the Website; and/or (g) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities.
11. Jurisdictional Issues
The Company makes no representation that the Website operates (or is legally permitted to operate) in all geographic areas, or that the Website is appropriate or available for use in other locations. Accessing the Website from territories where the Website or any content or functionality of the Website or portion thereof is illegal is expressly prohibited. If you choose to access the Website, you agree and acknowledge that you do so on your own initiative and at your own risk, and that you are solely responsible for compliance with all applicable laws. The Website is operated from the United States. If you are located outside of the United States and choose to use the Website or provide your information to us, your information will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement followed by your submission of your information in connection with the Website represents your agreement to this practice. If you do not want your information transferred to or processed or stored in the United States, you should not use the Website
12. Notice for California Users
Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
13. Choice of Law and Forum
This Agreement and your relationship with the Company Parties shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. The parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Santa Clara County, California and you consent to the exclusive jurisdiction of the federal or state courts located in Santa Clara County, California.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived, or modified except by a written instrument signed by the Company. This Agreement is between you and the Company; there are no third-party beneficiaries. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sublicensable by you except with the Company’s prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. The Company may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served on the Company at sales@KodaCloud.com (in the case of the Company) or to the e-mail address you have designated on your account (in your case). Notice to you shall be deemed given 24 hours after the e-mail is sent. Any heading, caption, or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.