Kaa Enterprise IoT Platform (Cloud) Services Terms and Conditions

Please read these terms and conditions carefully before registering for the Kaa Enterprise IoT Platform Cloud Services (the “Cloud Services”) offered on this website operated by KaaIoT Technologies, LLC with its principal place of business at 20801 Biscayne Blvd., Suite 403, Aventura, Florida 33180 (hereafter, “KaaIoT”, “Our”, “Us” or “We”). These terms and conditions form a contract between Customer and KaaIoT (Customer together with KaaIoT, the “Parties”) that govern all access and use of the Cloud Services. The terms “Customer”, “You” or “Your” refer to the user of the Cloud Services.

By registering for the Cloud Services and clicking on the accept button, Customer agrees to be legally bound by these Kaa IoT Enterprise Platform Cloud Services Terms and Conditions (“Agreement”). If You are an individual acting on behalf of any other entity, You represent that You are authorized to accept these terms on its behalf, and that You agree to these terms on its behalf.

All schedules and exhibits attached are incorporated into this Agreement. This Agreement may be modified from time to time.

If KaaIoT makes material changes to the Agreement, KaaIoT will notify You here, by email, or through a notice on Our website’s home page (www.kaaiot.com). Your continued use or access to the Services following any changes to the Agreement shall constitute Your acceptance of the changes and the revised Agreement.

IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT THEN YOU MAY NOT PURCHASE OR USE CLOUD SERVICES.

1. DEFINITIONS

   1. “Active Endpoint” means a physical or virtual device that connects to or exchanges data with the server(s) or computer network(s) on which KaaIoT provides the Cloud Services.

   2. "Cloud Services" means web-based access to and use of the Software, accessible via cloud.kaaiot.com (or another designated URL) that You have subscribed to by an Order Form or that we otherwise make available to You.

   3. “Cloud Services Plan” means one of the subscription packages through which You can use the Cloud Services as described at www.kaaiot.com/pricing.

   4. “Free Cloud Services” means the Cloud Services made available by Us to You on an unpaid trial or free basis.

   5. "Order Form" means the KaaIoT Cloud Services ordering documentation or online order by which you agree to subscribe to the Cloud Services.

   6. “Purchased Cloud Services Plan” means a paid Cloud Services Plan that Customer purchases under an Order Form, as distinguished from Free Cloud Services.

   7. “Software” means the Kaa IoT platform and all components developed, operated, and maintained by KaaIoT together with any fixes, updates and upgrades.

   8. "Subscription Term" means the initial term of Your subscription to the Cloud Services, as specified in Your Order Form(s), and each subsequent renewal term (if any). For Free Cloud Services, the term will be the period during which You have an account to access the Free Cloud Services.

   9. “Third Party” means any party that is not part of the Agreement.

   10. “Users” means those employees, contractors and end users, as applicable, authorized by Customer to access or use the Cloud Services in accordance with this Agreement. In the case Customer allows its customers, suppliers or other third parties to access the Cloud Services, such third parties will be considered “Users” and subject to the terms of this Agreement.

2. CLOUD SERVICES

   1. KaaIoT will provide the Cloud Services to Customer Users during the Term set forth in Section 6. KaaIoT does not provide maintenance and support, warranties, service levels, or indemnification with respect to the Cloud Services.

   2. Free Cloud Services are limited to five (5) Active Endpoints. If additional Active Endpoints are required, Customer must upgrade to a Purchased Cloud Services Plan.

   3. The maximum number of Active Endpoints for Cloud Services is 1000, unless otherwise specified in Your Order Form.

   4. If You exceed the number of Active Endpoints included in Your Purchased Cloud Services Plan during a billing cycle You will be automatically upgraded to the next Cloud Services Plan tier and the new rate will be charged at the beginning of the next billing cycle. If You exceed the number of Active Endpoints and are upgraded to the next Cloud Services Plan tier We will notify You by email to the address associated with your account.

   5. We reserve the right to monitor your use of the Cloud Services to verify compliance with any usage limits and this Agreement.

   6. More information on our Cloud Services Plans, including fees and what’s included can be found at www.kaaiot.com/pricing.

3. DATA LIMITS

   1. Total data storage is limited to 1GB multiplied by the number of Active Endpoints provided in Your Cloud Services Plan. 1GB is defined as 1024^3 bytes.

   2. If you exceed Your data storage limit we will charge you for additional Active Endpoints. Each 1GB of data in excess of Your data storage limit will be counted as 1 additional Active Endpoint. An incomplete GB of data will be counted as a complete GB.

   3. Excessive Consumption. If KaaIoT determines that Customer’s use of the Cloud Services imposes an unreasonable load on bandwidth or infrastructure, KaaIoT may impose controls to keep the usage below excessive levels.

4. FEES, PAYMENTS, UPGRADES, DOWNGRADES AND INVOICING

   1. Purchased Cloud Services Plans are billed in advance, and automatically renew on a thirty (30) day basis for equivalent thirty (30) day periods. Payment obligations for the Purchased Cloud Services Plans are non-cancelable and are non-refundable. There are no refunds or credits for partial months of service, package downgrades, for months unused, or for unused Active Endpoints. If You terminate Your Purchased Cloud Services Plan before the end of the current 30 day billing cycle, cancellation will take effect immediately; however, You will be responsible for any charges already incurred prior to cancellation.

   2. You agree to pay all fees applicable to your Purchased Cloud Services Plan, and any applicable taxes. Upon submission of your Order Form you agree to pay for the first 30 days of your Purchased Cloud Services Plan by credit card. You additionally consent to our use of a Third Party to process payments, and to the disclosure of Your payment information to such Third Party.

   3. After the initial 30 day term of your Purchased Cloud Services Plan we will bill for Purchased Cloud Services Plans through an electronic invoice, which will be sent prior to the start of Your next billing cycle. Payment is due prior to the beginning of the next billing cycle.

   4. Pricing for any Purchased Cloud Services Plan renewals, new orders, upgrades, or downgrades will be at KaaIoT’s then-applicable rates.

   5. Any upgrade or downgrade of a Purchased Cloud Services Plan will result in the new rate being charged in the next billing cycle. There will be no prorating for downgrades in the middle of a billing cycle. You can downgrade by sending a request to subscription@kaaiot.io. You can upgrade by submitting a new Order Form.

   6. Non-Payment. Payment is due prior to the start of each new thirty (30) day billing cycle. KaaIoT reserves the right to suspend or terminate the Cloud Services if any payment is outstanding for one (1) day or more. Customer is not entitled to any refund for termination or suspension of the Cloud Services.

   7. To request to view the specific details of your Cloud Services Plan, including pricing information and the end date of your subscription period contact Us at subscription@kaaiot.io.

5. AMENDMENTS AND FEE CHANGES

   1. You agree that KaaIoT may change any part or all of this Agreement, including Purchased Cloud Services Plan fees, and that your right to access the Cloud Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will provide you with advance notice of material changes by posting on our website or by email to the address associated with your account. By continuing to use the Services following receipt of such notice, you consent to the revised or modified terms of this Agreement.

6. TERM AND TERMINATION

   1. This Agreement (including any amendment thereto) becomes effective when Customer accesses the Cloud Services (the “Effective Date”) and shall continue for the duration of the Subscription Term, until either party terminates the Cloud Services in accordance with the provisions of this Agreement.

   2. Customer may terminate their Cloud Services Plan for convenience by email notice sent to subscription@kaaiot.io.

   3. Upon any termination of the Cloud Services this Agreement shall also Terminate.

   4. Upon termination of this Agreement the access to the Cloud Services will be removed and KaaIoT will delete the Customer's environment/tenant, dedicated virtual servers and the Customer Data following industry-standard practices.

   5. Suspension and Termination of Free Cloud Services. We may suspend, limit, or terminate Free Cloud Services for any reason at any time without notice. KaaIoT will have no liability of any kind for any delay or other claims that may arise as a result of such suspension or termination, including, but not limited to, loss of data or loss of business.

   6. We may terminate Your subscription to the Purchased Cloud Services Plan at any time without cause upon 30 days’ written notice to You, or immediately if You fail to comply with any term or condition of this Agreement. KaaIoT will have no liability of any kind for any delay or other claims that may arise as a result of such suspension or termination, including, but not limited to, loss of data or loss of business.

   7. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. OWNERSHIP

   1. The Cloud Services and Software, documentation and data related to the Cloud Services are proprietary to KaaIoT, and are protected under U.S. and international intellectual property laws. Customer acknowledges and agrees that: (a) KaaIoT and its licensors retain all intellectual property rights in the Cloud Services and Software, including without limitation, the components listed in Exhibit A, and all improvements, enhancements or modifications thereto ; (b) any rights not expressly granted to Customer hereunder are reserved by KaaIoT; and (c) Customer acquires no ownership or other interest in or to the Cloud Services or Software (other than Customer’s limited right to access and use the Cloud Services set forth in Section 2).

8. RESTRICTIONS AND RESPONSIBILITIES

   1. The right to access and use the Cloud Services is subject to the following restrictions. Customer will not, directly or indirectly, alone or with another party:

      1. access or use the Cloud Services other than in compliance with all applicable laws and regulations;

      2. copy, distribute, modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Cloud Services or the Software;

      3. sell, rent, lease, license, sublicense, resell or transfer access to the Cloud Services, Software, or any intellectual property of KaaIoT or its licensors;

      4. modify, translate, or create derivative works based on the Cloud Services or Software (except to the extent expressly permitted by KaaIoT or authorized within the Cloud Services);

      5. use the Cloud Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed otherwise in writing by KaaIoT;

      6. access the Cloud Services in order to build a similar product or competitive product;

      7. conduct penetration testing other than by written agreement with KaaIoT;

      8. perform or disclose any benchmark or performance tests of the Cloud Services;

      9. use the Cloud Services or Software for time-sharing or service bureau purposes or otherwise for the benefit of a third party, whether on a paid or unpaid basis;

      10. remove any proprietary notices or labels;

      11. interfere with or disrupt the integrity or performance of the Cloud Services or the data contained therein;

      12. allow or authorize anyone to do any of the foregoing, or

      13. allow or authorize anyone to use the Cloud Services, Software or KaaIoT intellectual property in violation of this Agreement.

   2. Any custom applications, including but not limited to user interfaces, used by Customer to interact with the Cloud Services must include the following notice visible to end users: "Powered by the Kaa® IoT platform, © 2020 KaaIoT Technologies, LLC. All Rights Reserved" and must include a link to the KaaIoT website located at www.kaaiot.com.

   3. Customer agrees to comply with the export laws and regulations of the United States and any other applicable export laws, and undertakes not to directly or indirectly sell, supply, transfer, transmit, export or re-export the Services in violation of these laws and regulations to prohibited countries or third parties, or permit use of the Services by prohibited countries or third parties.

9. CUSTOMER INFORMATION

   1. Customer Access: The Customer is responsible for the access to the Cloud Services and is responsible for maintaining the confidentiality of its access methods such as usernames and passwords. The Customer is responsible for all activities that occur under its Account.

   2. Metadata, Customer Data and Customer Personal Data: The Cloud Services will gather and transmit certain technical information, Account information, and metadata associated with the Customer’s access and use of the Cloud Services, including application telemetry, IP addresses, IP configurations, stored sessions, open ports, account credentials, network metadata, and device operating system, status, version and configuration (collectively “Metadata”). Metadata will not include any of the actual Customer Data processed with the Cloud Services. With the exception of Metadata the Customer shall own all content, information, materials, and intellectual property provided in its unaltered form by Customer in connection with Customer’s use of and access to the Cloud Services (“Customer Data”).

   3. Customer Responsibility for Customer Data: The Customer is solely responsible for all Customer Data provided, uploaded to, stored in or transmitted through the Cloud Services, and the use of the Cloud Services by the Customer and its Users.

   4. KaaIoT Access to Customer Data and Metadata: Customer hereby grants to KaaIoT a worldwide, irrevocable, non-transferable, non-assignable (except as permitted under this Agreement), sub-licensable, non-exclusive licence to access, retrieve, use, store, copy, display, distribute, and transmit Customer Data associated with the Cloud Services: (a) in connection with maintaining, providing and/or making available the Cloud Services; (b) as reasonably required in order to cooperate with legitimate governmental requests, subpoenas or court orders provided that KaaIoT gives Customer reasonable notice of the demand to allow Customer to seek a protective order or other appropriate remedy unless KaaIoT is legally prohibited from doing so; (c) as otherwise required in order to ensure the integrity and operation of KaaIoT’s systems and the Customer; a. The Customer hereby consents to the use by the KaaIoT of the Metadata as reasonably required in connection with maintaining, providing and/or making available the Cloud Services.

10. FEEDBACK

    1. You have no obligation to give Us any suggestions, comments, or other feedback relating to the Cloud Services (“Feedback”). If You provide Us with Feedback, You grant Us a worldwide, royalty-free, non-exclusive, perpetual, and irrevocable license to use, copy, modify, sublicense, and otherwise utilize the Feedback (including any ideas, concepts, methods, know-how, or techniques embodied in Feedback) for any purpose, without any restriction or obligation to You based on intellectual property rights or otherwise. You accept full responsibility for Your Feedback, and warrant that You have the exclusive right to submit such Feedback, that it does not violate any third party intellectual property rights, does not violate any applicable laws, and that its use, reproduction, or distribution will not give rise to any type of civil or criminal liability. Under no circumstances shall You be entitled to reimbursement, compensation, or consideration of any kind from KaaIoT for Your Feedback.

11. CONFIDENTIALITY

    1. Confidentiality: Each Party may only use or disclose Confidential Information of the other Party for purposes within the scope of this Agreement. “Confidential Information” means any and all information disclosed by one Party to the other, in any form, whether before or after the effective date of this Agreement, that is designated as confidential or that reasonably should be understood to be confidential given the nature of information and circumstances of disclosure, including, but not limited to, business information and plans, technical information and processes, computer software (both source code and object code), intellectual property rights, finances, or information regarding features, functionality and performance of the Cloud Services.

    2. Each Party agrees: (a) to use Confidential Information only for the purposes described herein; and (b) not to reproduce Confidential Information and to hold it in confidence and protect it from dissemination to, and use by, any third party; and (c) not to create any derivative work from Confidential Information; and (d) to restrict access to the Confidential Information to its employees, contractors or agents who need such access for purposes consistent with this Agreement and who have been advised of and have agreed in writing to treat such Confidential Information in accordance with this Agreement; and (e) to return or, at the disclosing Party’s discretion, destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement.

    3. Exclusions: The obligations of confidentiality under this Agreement shall not apply with respect to any information after five (5) years following the disclosure thereof, or any information that the recipient of Confidential Information can prove through documentary evidence (a) is, or after the day this Agreement is made effective, becomes public knowledge (otherwise than as a result of a breach of this Agreement), or (b) was in its possession or known by it prior to the execution of this Agreement, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the disclosing Party or (e) is required to be disclosed by law.

    4. Compliance with law permitted: Each Party may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body or applicable law, including to make such court filings as it may be required to do, provided that it gives reasonable notice of the demand to allow the other Party to seek a protective order or other appropriate remedy (unless is legally prohibited from doing so).

12. INDEMNITY

    1. Customer Indemnity: Customer shall indemnify, defend, and hold KaaIoT, its officers, directors, employees, agents, successors or assigns harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from or is related to:

       (a) any use of the Cloud Services by Customer in violation of any applicable law or regulation;

       (b) any combination of the Cloud Services with any hardware, software, component or equipment not provided by us;

       (c) any Customer Data, including but not limited to allegations that Customer data or other material provided by Customer violates, infringes, or misappropriates the Intellectual property rights of a third party; or,

       (d )use of the Cloud Services in violation of or outside the scope of this Agreement;

13. LIMITATION OF LIABILITY

    1. WARRANTY DISCLAIMER:

       CUSTOMER ACKNOWLEDGES THAT THE CLOUD SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, AND ARE PROVIDED SOLELY FOR THE CUSTOMER’S EVALUATION. KAAIOT DOES NOT WARRANT THE CLOUD SERVICES TO BE UNINTERRUPTED OR ERROR-FREE OR THAT THE CLOUD SERVICES WILL MEET THE CUSTOMERS REQUIREMENTS.

       KAAIOT DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CAN NOT BE VALIDLY WAIVED. THE CUSTOMER ASSUMES ALL RISK AND ALL COSTS OF USE, INCLUDING WITHOUT LIMITATION DAMAGE TO EQUIPMENT, SOFTWARE, INFORMATION OR DATA.

    2. LIMITATION OF LIABILITY:

       TO THE EXTENT PERMITTED BY LAW NEITHER KAAIOT, ITS SUBSIDIARIES OR AFFILIATES NOR ANY OF ITS LICENSORS SHALL BE LIABLE FOR ANY LOSS OR DAMAGE HEREUNDER, INCLUDING, WITHOUT LIMITATION, ANY INACCURACY OF DATA, LOSS OF BUSINESS, REVENUE, PROFITS, LOSS, CORRUPTION OR DESTRUCTION OF DATA, BUSINESS INTERRUPTION, OR DOWNTIME, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    3. DAMAGES CAP:

       THE AGGREGATE LIABILITY OF KAAIOT TO CUSTOMER FOR ANY LOSS OR DAMAGE ARISING UNDER OR IN RELATION TO THIS AGREEMENT, REGARDLESS OF THE BASIS OF LIABILITY (WHETHER ARISING OUT OF LIABILITY UNDER BREACH OF CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) MISREPRESENTATION, BREACH OF STATUTORY DUTY, BREACH OF WARRANTY OR CLAIMS BY THIRD PARTIES ARISING FROM ANY BREACH OF THIS AGREEMENT) SHALL NOT EXCEED THE FEES PAID BY CUSTOMER PURSUANT FOR THE CLOUD SERVICES GIVING RISE TO SUCH LIABILITY IN THE THREE (3) MONTH PERIOD PRECEDING THE DATE OF THE INCIDENT GIVING RISE TO THE CLAIM. THE PROVISIONS OF THIS SECTION 13 ALLOCATE THE RISKS BETWEEN KAAIOT AND CUSTOMER, AND KAAIOT’S PRICING REFLECTS THE ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN. FOR FREE CLOUD SERVICES, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE CLOUD SERVICES, THEN THE AGGREGATE LIABILITY OF KAAIOT WILL BE LIMITED TO FIFTY (50) U.S. DOLLARS.

14. OPEN SOURCE COMPONENTS

    1. Certain components of the Cloud Services or Software may include open-source components which are subject to the terms of the applicable software license agreements and not the terms and conditions of this Agreement. Customer may access the open source software copyright notices, terms and conditions within the Cloud Services documentation. All open source software is provided WITHOUT ANY WARRANTIES, REPRESENTATIONS, CONDITIONS OR OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CAN NOT BE VALIDLY WAIVED.

15. MISCELLANEOUS

    1. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

    2. This Agreement is not assignable, transferable or sublicensable by Customer except with KaaIoT’s prior written consent. KaaIoT may transfer and assign any of its rights and obligations under this Agreement without consent.

    3. This Agreement (including any amendment thereto) along with our Privacy Policy (including any amendment thereto) is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.

    4. No failure or delay in exercising any right under this Agreement will operate as a waiver of such right and no right or remedy conferred herein is exclusive of any other right and each such right shall be cumulative. Waivers must be in writing signed by a KaaIot officer.

    5. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind KaaIoT in any respect whatsoever.

    6. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

    7. All notices under this Agreement will be in writing and will be deemed to have been duly given: when sent, if transmitted by email, provided no notice of unsuccessful transmission is received by the sender.

    8. Any dispute arising under this Agreement will be subject to binding arbitration by a single arbitrator with the American Arbitration Association (“AAA”), in accordance with its relevant industry rules, if any. The Parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of New York without regard to its conflict of laws provisions. The arbitration will be held in Manhattan, New York USA. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction. The Arbitrator is not empowered to award damages in excess of compensatory damages as set forth in this Agreement. Except as otherwise stated in this Agreement, any and all disputes required to be submitted to mandatory arbitration shall be so submitted within one (1) year from the date the dispute first arose or shall be forever barred. In addition, the non-prevailing party agrees to pay any reasonable and direct damages and/or expenses that the prevailing party may sustain as a result of a breach of any provision of this Agreement, including any reasonable attorney’s fees and court costs incurred that arise from a breach or violation hereof.

Exhibit A

List of Pre-Existing Kaa components: