Terms of Service
- “Authorized Users” means Customer employees, agents, representatives and contractors who are permitted access to the Services by Kapeta up to the number specified in the Kapeta Pricing Webpage or Order Form (as defined below).
- “Customer Data” means any data, information, or materials that Customer discloses or submits to Kapeta in the course of using the Services.
- “Kapeta Pricing Webpage” means the pricing available at https://kapeta.com/pricing.
- “Order Form” means a separate ordering document that references this Terms, specifies the Services purchased and is executed by Kapeta and Customer.
- “We“, “Us“, “Kapeta” or “Our” means Kapeta Inc.
- “You” or “Customer” means the company or other legal entity and its affiliates for which you are accepting these Terms.
- Subject to the terms and conditions of these Terms, Kapeta shall provide the Customer with a developer platform (the “Platform”). The Platform allows the Customer to design software architectures, build their own components, and potentially utilize components created by other developers. Kapeta offers the capability for the Customer to deploy their built software application to a cloud provider that Kapeta supports. While Kapeta manages the system, the Customer retains access to their data. The Customer may incorporate components into the Platform by directly interfacing with the Kapeta user interface. The Customer acknowledges that the performance and efficacy of the Services might be compromised if they do not provide accurate and up-to-date information or configurations..
- The Platform shall be provided and supported by Kapeta (the “Support Services“, and together with the Platform, the “Services“).
- During the Term and subject to Customer’s compliance with the Terms, Kapeta grants Customer a non-exclusive, non-transferable, non-sublicensable, limited, revocable right for Authorized Users to use the Platform and the Services, for Customer’s business use, according to Kapeta’s Documentation.
- Use the Services and all related software in accordance with the Documentation and in compliance with all applicable laws and regulations, including but not limited to applicable data security and privacy laws.
- Use Kapeta’s platform in a fashion consistent with the requirements set forth in the Documentation (or as otherwise specified by Kapeta). Using the Platform in a way not consistent with Kapeta’s guidelines may cause Customer software to be rejected by the Platform and Kapeta will have no responsibility for any related impact on Customer’s ability to access or use the Platform.
- Manage and secure all login credentials used by Authorized Users in connection with their use of the Kapeta Platform and protect the same against unauthorized use or disclosure.
- Customer represents and warrants that no third party agreement prevents it from using the Kapeta Platform and Services as contemplated hereunder.
- Customer represents and warrants that Customer Data will not: (a) infringe or misappropriate any third party’s intellectual property rights; (b) be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage the Services or the Platform; and (d) otherwise violate the rights of a third party (including under all applicable privacy laws).
Fees and Payment
- Payment Terms. Services may be provided for a fee, as set forth in the Kapeta Pricing Webpage or in the Order Form (“Fees“). In Consideration for such paid Services, You will pay, and You authorize Kapeta to charge, using your selected payment method (credit card), all Fees with respect to the Services. Fees are non-refundable except as required by law. Fees shall be due on receipt of the date of the invoice issued by Kapeta in accordance herewith. Fees shall be payable either monthly, annually or any other billing frequency offered by Kapeta. Kapeta may increase the Fees by written notice to the Customer or updates on the Pricing page of the website.
- Billing Information. You are responsible for providing complete and accurate billing and contact information and updating us of any changes to such information. Billing may be performed by a third party service provider of Kapeta. We may suspend or terminate the Services if fees are past due.
- Taxes. Our fees do not include taxes, levies or duties, such as value added tax, sales or use tax and any other similar charges. We will charge tax if we are required to do so.
You must not misuse the Services. You may not, whether by yourself or anyone on your behalf (a) sell, resell, lease or share the Services or access or attempt to access the Services by any means other than the interface we provided or authorized; (b) circumvent any access or use restrictions put into place to prevent certain uses of the Services; (c) use the Services to store, share or transmit Customer Data which is unlawful, infringing, harmful or which violates any person’s rights, including privacy rights and intellectual property rights; (d) attempt to disable, impair, or destroy the Services, or Platform; (e) reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so; (f) except as specifically permitted in writing by Kapeta, not use the name, trademarks, trade-names, and logos of Kapeta; (g) except as specifically permitted herein, not copy any part or content of the Platform unless permitted by the specific licensing for the given component; (h) not copy any features, functions or graphics of the Platform or use it to build a competitive product or service unless permittted by the licensing for the given feature; (i) not represent that it possesses any proprietary interest in the Platform, Service, or any part or derivative thereof; (j) not directly or indirectly, take any action to contest Kapeta’s intellectual property rights or infringe them in any way; and (k) not remove the copyright, trademark and other proprietary notices contained on or in Kapeta’s Platform, products or Services.
Intellectual Property Rights
- All rights not expressly granted to You under these Terms are reserved by Kapeta. We reserve all rights, title and interest to the Services, the Platform, and any part thereof, and any of their related intellectual property rights. The Terms do not convey to You an interest in or to Kapeta’s intellectual property rights. Nothing in the Terms constitutes a waiver of Kapeta’s Intellectual Property Rights under any law.
- For avoidance of doubt, Kapeta will not seek to derive, reproduce, or otherwise utilize any Customer Data, for purposes other than processing and rendering the Customer Data for Customer’s use in the Platform. Customer shall be the exclusive owner of and retain all intellectual property rights and all other ownership interests in and to, the Customer Data (“Customer IPR”).
- Customer hereby grants to Kapeta a non-exclusive, non-sublicensable, revocable, non-transferable, royalty-free, worldwide license during the Term to use all Customer Data provided to Kapeta by Customer in connection with these Terms, to permit Kapeta to perform the Services to Customer as set forth in these Terms, all subject to Kapeta’s compliance with applicable law and privacy regulations.
- Kapeta monitors the performance and use of the Platform by its customers and collects data in connection therewith (the “Usage Data“). Kapeta may combine this Usage Data with other data (including anonymized elements of the Customer Data), and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregate Data“). Customer agrees that Kapeta may collect, use, publish, and vend such Aggregate Data; provided, however, that such usage shall not, directly or indirectly, identify Customer, its Authorized Users, or any individual, or contain Customer’s confidential information.
- To the extent You provide us any feedback, comments or suggestions (“Feedback“), You grant us a royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into the Services or any of our current or future products or services.
- For the purposes hereof, “Confidential Information” means any proprietary or trade secret information disclosed by one party (the “Disclosing Party“) to the other (the “Receiving Party“) which can be reasonably understood under the circumstances to be confidential, but excluding any information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of Receiving Party; (ii) the Receiving Party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the Disclosing Party; (iii) the Receiving Party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of these Terms; (iv) the Receiving Party can demonstrate in its records to have independently developed, without breach of these Terms and/or any use of or reference to the Confidential Information. For avoidance of doubt, Customer IPR shall be deemed Customer Confidential Information.
- The Receiving Party agrees (i) not to disclose the Disclosing Party’s Confidential Information to any third parties other than to its directors, employees, advisors, or consultants (collectively, its “Agents“) on a “need to know” basis and provided that such Agents are bound by confidentiality obligations not less restrictive than those contained herein; (ii) not to use or reproduce any of the Disclosing Party’s Confidential Information for any purposes except to carry out its rights and responsibilities under these Terms; (iii) to keep the Disclosing Party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if the Receiving Party is required by legal process or applicable law, rule, or regulation to disclose any of the Disclosing Party’s Confidential Information, then prior to such disclosure, if legally allowed, Receiving Party will give prompt notice to the Disclosing Party so that it may seek a protective order or other appropriate relief. The confidentiality obligations hereunder shall expire five years from the date of termination or expiration of these Terms (and with respect to trade secrets- in perpetuity) and shall supersede any previous confidentiality undertakings between the parties.
You will indemnify, defend, and hold harmless Kapeta, its affiliates, resellers, employees and agents (the “Indemnified Parties“) from and against all liabilities, damages, and costs (including reasonable attorneys’ fees) arising out of any claim, demand, suit or proceeding by a third party alleging that your use of the Services infringes or misappropriates a third party’s intellectual property rights or violates applicable law or that your use of the Services is in violation of these Terms.
Disclaimers of Warranties
- EXCEPT AS EXPLICITLY SET FORTH IN THESE TERMS, KAPETA PROVIDES THE KAPETA PLATFORM, SERVICES, AND DOCUMENTATION TO CUSTOMER ON AN “AS IS“ BASIS, WITHOUT WARRANTIES OR REPRESENTATION OF ANY KIND, AND KAPETA EXPRESSLY DISCLAIMS ALL WARRANTIES – STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY. KAPETA FURTHER DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE KAPETA PLATFORM OR ANY RELATED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
- Customer acknowledges that the quality and accuracy of the Services are dependent on the accuracy and completeness of the information provided by Customer. CUSTOMER ACKNOWLEDGES THAT KAPETA SHALL NOT BEAR ANY LIABILITY OR RESPONSIBILITY FOR FAULTS, ERRORS OR ERRONEOUS RECOMMENDATIONS PROVIDED ON THE BASIS OF UNTIMELY, INCOMPLETE, INACCURATE, FALSE OR MISLEADING INFORMATION PROVIDED INTENTIONALLY BY CUSTOMER OR THE AUTHORIZED USERS.
Limitation of Liability
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL KAPETA BE LIABLE FOR (I) INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR (II) LOSS OF PROFITS OR REVENUE, LOSS OF DATA (INCLUDING END-USER INFORMATION), BUSINESS INTERRUPTION, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF KAPETA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, KAPETA’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO KAPETA DURING THE 1 MONTH PRECEDING THE DATE THE LIABILITY FIRST ARISES.
Term and Termination
- Term. Unless otherwise specified in an Order Form, the term of these Terms commences on the date You first accept them and will remain in effect while You use the Platform or Services, or until these Terms are terminated.
- Termination. We may terminate the Services on 30 days’ prior written notice to you. You may stop using the Services at any time. We may suspend or terminate your access to the Platform and/or Services at any time at our discretion and without notice if You do not comply with these Terms. Upon termination of these Terms, your right to access and use the Services and the Platform will terminate immediately. You understand that any termination may involve deletion of Customer Data from our Services, and Platform. Kapeta will not have any liability whatsoever to you for any termination of these Terms, including for deletion of Customer Data.
- Survival. The provisions of these Terms that, by their nature and content, must survive the termination of these Terms in order to achieve the fundamental purposes of these Terms shall so survive. Without limiting the generality of the foregoing, the Intellectual Property Rights, Disclaimers of Warranties, Limitation of Liability, Governing Law and Jurisdiction and General sections, will survive the termination or expiration of the Terms.
- Publicity. Kapeta may issue publicity or general marketing communications concerning its involvement with the Customer and may use Customer’s name and logo for the sole purpose of identifying Customer as a customer. Any other use of Customer’s logo or other service marks will require prior written approval of Customer.
- Changes to Terms. Kapeta may change the Terms from time to time, and such change will become effective upon the date on which it is posted on the Kapeta website. You are responsible for checking the website regularly for such changes. By continuing to access or use the Services you agree to be bound by the revised Terms.
- Governing Law and Jurisdiction. These Terms are governed by the laws of the State of Delaware in the United States and any dispute arising from these Terms shall be brought exclusively before the courts of Delaware.
- Severability. If any part of these Terms is deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed to be severable from the rest of these Terms and shall not affect the validity and enforceability of any of the remaining provisions of these Terms. In such cases, the part deemed invalid or unenforceable shall be construed in a manner consistent with applicable law to reflect, as closely as possible, the original intent of the parties.
- Waiver. No waiver by us of a breach of any of the provisions of terms of these Terms shall be construed as a waiver of any preceding or succeeding breach of any of the provisions of these Terms.
- Relationship. Nothing in these Terms shall be construed as creating any agency, partnership, trust arrangement, fiduciary relationship or any other form of joint enterprise between you and Kapeta.
- Entire Agreement. These Terms, including any Order Form executed hereunder contain the entire agreement between Kapeta and You relating to your use of the Services and supersedes any and all prior agreements between Kapeta and You in relation to the same. You confirm that, in agreeing to accept these Terms, You have not relied on any representation except as has expressly been made by Kapeta in these Terms, including any applicable Order Form. In the event of a conflict between a provision in the body of these Terms and a provision in an Order Form, the Order Form shall prevail.
- Assignment. You may not assign your rights or delegate your obligations under these Terms without Kapeta’s prior written consent. Any purported assignment contrary to this section will be null and void. Kapeta may assign its obligations hereunder among the various Kapeta entities within the Kapeta group.
- No Third Party Rights. There are no third-party beneficiaries to these Terms. Without limiting this section, Users are not third-party beneficiaries to your rights under these Terms.
Updated on October 26, 2023.