Kaa Enterprise IoT Platform (Hosted) Services Terms and Conditions

Please read these terms and conditions carefully before registering for a trial and/or a subscription for the Kaa Enterprise IoT Platform (Hosted) Services (the “Services”) offered on this website operated by KaaIoT Technologies, LLC with its principal place of business at 16047 Collins Avenue, Suite 1704, North Miami Beach, FL 33160 (hereafter, “KaaIoT”, “Our” 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 Services. The terms “Customer”, “You” or “Your” refer to the user of the Services.

By registering for a trial and/or a subscription for the Services and clicking on the accept button, Customer agrees to be legally bound by these Kaa Enterprise IoT Platform (Hosted) Services Terms and Conditions (“Agreement”).

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 KAAIOT SERVICES.

1. DEFINITIONS

   1. “Active Endpoint” means an Endpoint that connects to or exchanges data with the Hosted Software.

   2. “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 Services.

   3. “Customer” means the company or person whose online application for the use of the Services at www.kaaiot.com has been accepted by KaaIoT.

   4. “Customer Data” means the data owned by Customer transmitted to, loaded into, or stored in the Hosted Software or running on or through the Hosted System.

   5. “Endpoint” means a physical or virtual device that has a separate identity in the Kaa Enterprise IoT Platform.

   6. “Engineering Support” means responding to inquiries relating to solution implementation.

   7. “Hosted Software” means the standard commercially available Kaa Enterprise IoT Platform components for which KaaIoT is providing the Services.

   8. “Hosted System” means the server(s) and computer network(s) on which KaaIoT provides Customer remote access to the Hosted Software and Customer Data.

   9. “Production Support” means assistance in resolving issues with live production systems.

   10. “Professional Services” means services related to the implementation of configurations and integrations, interface development, custom software code development, Hosted Software maintenance, training, and consulting.

   11. “Services” refers to the combination of Hosted Software and Hosted System components owned, licensed or managed by KaaIoT to which KaaIoT grants Customer and Customer’s Users access as part of the Kaa Enterprise IoT Platform Hosted offering you have ordered.

   12. “Service Specifications” by default refers to the scope of the Services provided within the KaaIoT-hosted “250” Subscription Plan and applicable fees (that can be viewed at www.kaaiot.com/pricing/) unless other Subscription Plan was requested by Customer in writing (including by email to subscription@kaaiot.io) and mutually agreed by the Parties.

   13. “Term” if the Customer does not unsubscribe prior to the expiration of the Trial Period, the term shall automatically start from the end of the Trial Period and shall continue for an unlimited period until either party terminates in accordance with the provisions of this Agreement.

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

   15. “Trial Period” means the free trial period starting on the date that KaaIoT provides Customer access to the free Services on the KaaIoT website and ending 30 days later upon the expiration of the free trial period. Each Customer is only entitled to one free trial period.

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

2. KAA ENTERPRISE IOT PLATFORM (HOSTED) SERVICES

   1. KaaIoT is entitled to refuse any application filed by a Customer. If an application is accepted, KaaIoT will confirm acceptance via email. Upon acceptance of the application, the Customer engages KaaIoT and KaaIoT agrees to provide the Services in accordance with the terms of this Agreement.

   2. KaaIoT agrees to provide the Services for the Trial Period and/or Term or sooner termination in accordance with the terms of this Agreement.

   3. Use of the Services during the free trial will be restricted to non-productive evaluation use. Notwithstanding anything to the contrary, in connection with such free trial use:

      1. no fees will apply;

      2. the Services are provided “AS IS” and no warranty obligations of KaaIoT will apply.

      The free trial is only available to first-time users of the Services. KaaIoT reserves the right, in its absolute discretion, to determine Customer’s eligibility for a free trial, and, subject to applicable laws, to withdraw or to modify a free trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.

   4. Subject to all the terms of this Agreement, and payment of all applicable fees as specified in the Service Specifications, KaaIoT will use commercially reasonable efforts to make the Services available to Customer during the Term via remote internet access solely for Customer’s internal business purposes, but only in accordance with this Agreement.

   5. Customer may access and use the Services to the extent of the number of Active Endpoints and capacity of hosted system acquired by Customer, as specified in the Service Specifications at no additional cost. Any use of the Services beyond the number of Active Endpoints and capacity of the hosted system acquired by Customer shall not be deemed a breach of this Agreement provided that Customer pays the charges for such excess use as specified in the Service Specifications.

   6. Customer is responsible for the use of the Services by all Users that access the Services.

   7. The Services do not include Engineering Support or Production Support. Engineering Support and Production Support are outside of the scope of the Services. If requested by Customer and agreed upon by KaaIoT, Customer may purchase Priority Engineering Support or production support under mutually agreed and separately signed support agreements.

   8. The Services do not include any Professional Services. Professional Services are considered outside of the scope of the Services. If requested by Customer and agreed upon by KaaIoT, Customer may purchase Professional Services under a mutually agreed and separately signed Statement of Work (“SOW”). Each SOW for Professional Services will be subject to a separate agreement.

3. RESTRICTIONS AND RESPONSIBILITIES

   1. Customer will not, directly or indirectly, alone or with another party

      1. 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 Services or any software, documentation or data related to the Services (“Software”);

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

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

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

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

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

      7. use the Services or the Hosted Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, whether on a paid or unpaid basis;

      8. remove any proprietary notices or labels;

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

      10. allow or authorize anyone to use the 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 Hosted System or Hosted Software must include the following notice visible to the Users: "Powered by the Kaa Enterprise IoT platform, KaaIoT Technologies, LLC" and must include a link to the KaaIoT website located at  www.kaaiot.com.

   3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations, including any applicable export laws.

   4. Although KaaIoT has no obligation to monitor Customer’s use of the Services, KaaIoT may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement or otherwise from Customer’s use of the Services.

   5. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files.

   6. Customer is solely responsible for maintaining backups of its source Customer Data and all Customer systems on or through which the Services are accessed and used. Customer is responsible for removing all Customer Data prior to the termination or expiry of this Agreement. Notwithstanding the aforesaid, the KaaIoT reserves the right to remove all Customer Data after the expiry or termination of this Agreement without giving the Customer any prior notice of such deletion.

4. CONFIDENTIALITY

   1. Each party may only use or disclose Confidential Information of the other party for purposes within the scope of this Agreement, and shall limit access to Confidential Information of the other party to its employees, contractors or agents who need such access for purposes consistent with this Agreement. 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.

5. CUSTOMER DATA

   1. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to KaaIoT as part of the Services.

   2. Notwithstanding anything to the contrary, KaaIoT shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Customer irrevocably grants KaaIoT the right (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other KaaIoT offerings, and (ii) to disclose such data solely in aggregate or other de-identified form in connection with its business. No other rights or licenses are granted except as expressly set forth herein.

   3. Customer acknowledges that KaaIoT maintains global operations and the information Customer enters into the Hosted Software and Hosted System may be transferred outside the United States and/or the European Economic Area and may be processed outside Customer’s country. Customer certifies that it has obtained any personal data provided to KaaIoT in accordance with applicable data protection laws.

6. PROPRIETARY RIGHTS

   1. KaaIoT shall own and retain all right, title and interest in and to (a) the Services and Hosted Software, all improvements, enhancements or modifications thereto, including without limitation, the intellectual property listed in Exhibit A, (b) any software, applications, inventions or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.

   2. Customer grants to KaaIoT a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into Services any suggestions, enhancement requests, recommendations, or other feedback provided relating to the Services.

7. FEES

   1. Customer will pay KaaIoT the then applicable fees described in the Service Specifications for the Services (the “Services Fee”). KaaIoT will issue monthly invoices for Service Fees to Customer by email, or upon the Customer's request, annually in advance of the respective year. The Services Fee is due in advance. Invoices shall be payable in full by bank transfer. All payments shall be made in United States Dollars. 

   2. If Customer’s use of the Services exceeds the Service Capacity set forth in the Service Specifications or otherwise requires the payment of additional fees (per the terms of this Agreement) (the “Additional Fees”), Customer shall be billed on a monthly basis for such usage and Customer agrees to pay the Additional Fees in the manner provided herein.

   3. KaaIoT reserves the right to suspend the Services if any payment is outstanding for seven (7) days or more, and to terminate the Services and/or Agreement if any payment is outstanding for fourteen (14) days or more. Customer is not entitled to any refund for termination or suspension of the Services.

   4. Any fees paid under this Agreement are non-refundable. There are no refunds or credits for partial months of Service, plan downgrades, or refunds for months unused. Customer is responsible for paying all charges in accordance with the use of the Services based on the number of Active Endpoints. If Customer cancels the subscription to the Services before the end of the current billing period, the cancellation will take effect immediately and Customer will not be charged again with the exception only that Customer shall be responsible for all charges already incurred or rendered.

   5. If Customer believes that KaaIoT has billed Customer incorrectly, Customer must contact KaaIoT no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to accounting@kaaiot.io.

   6. KaaIoT will monitor and measure Customer’s usage of the Services, on a monthly basis, as applicable to the number of Active Endpoints specified in the Service Specifications. If the number of Active Endpoints within a given month exceeds the quantity purchased, Customer shall be charged the applicable fees for such excess use as set forth in the Service Specifications.

   7. To confirm Customer’s compliance with the terms and conditions of this Agreement, Customer agrees that KaaIoT may perform usage assessments with respect to Customer’s use of the Services. Customer agrees to provide KaaIoT access to Customer’s facilities and/or computer systems, and cooperation from Customer’s employees and consultants, as reasonably requested by KaaIoT in order to perform such assessments, all during normal business hours, and after reasonable prior notice from KaaIoT.

   8. Fees do not include sales, use, value added or other excise tax. Customer will be responsible for all taxes associated with Services other than U.S. taxes based on KaaIoT’s net income, and will pay (or if paid by KaaIoT) reimburse KaaIoT for all such taxes based on this Agreement or fees payable hereunder, together with any interest on such taxes is not due to KaaIoT’s delay.

8. FEE CHANGES

   1. KaaIoT reserves the right to change the fees (“Fee Changes”) for the Services, upon no less than 30 days prior notice by email to Customers with monthly subscriptions. Any opposition or objection to a Fee Change is to be submitted within thirty (30) days from the date of receipt of the Fee Change notice.

9. TERMINATION

   1. Customer may terminate this Agreement for convenience at any time by unsubscribing. To unsubscribe, Customer must send a notice by email to subscription@kaaiot.io. No fees paid or payable prior to termination shall be refunded.

   2. KaaIoT may immediately terminate this Agreement and/or the provision of any Services provided pursuant to this Agreement if the Customer has used or permitted the use of the Services otherwise than in accordance with this Agreement.

   3. KaaIoT may terminate this Agreement on written notice by email to Customer if:

      1. Customer Commits any breach of this Agreement; or 

      2. KaaIoT decides to cease providing the Services generally.

   4. KaaIoT has the right to suspend or terminate the Services and/or Agreement due to a breach of this Agreement, lack of or delay of payment for the Services, or breach of law. Customer acknowledges and agrees 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.

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

10. WARRANTY AND DISCLAIMER

    KaaIoT shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the any Professional Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by KaaIoT or by third-party providers, or because of other causes beyond KaaIoT’s reasonable control. KaaIoT shall use reasonable efforts to provide advance notice by email of any scheduled service disruption.

    KAAIOT DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY WITH RESPECT TO THE SECURITY OF THE HOSTED SOFTWARE OR HOSTED SYSTEM OR THAT CUSTOMER DATA WILL NOT BE DESTROYED, LOST, INTERCEPTED, OR ALTERED BY UNAUTHORIZED PERSONS. KAAIOT DOES NOT WARRANT THAT THE HOSTED SOFTWARE OR HOSTED SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO CUSTOMER DATA.

11. INDEMNITY

    1. KaaIoT, at its own expense, shall (i) defend, or at its option, settle any claim or suit brought against Customer by a third party on the basis of infringement of any intellectual property right by the Services (excluding any claim or suit deriving from any Customer provided item); and (ii) pay any final judgement entered against Customer on such issue or any settlement thereof, provided that:

       1. Customer notifies KaaIoT promptly of each such claim or suit;

       2. KaaIoT is given sole control of the defense and/or settlement; and 

       3. Customer fully co-operates and provides all reasonable assistance to KaaIoT in the defense or settlement.

    2. KaaIoT shall have no obligations under clause 11.1 to the extent that a claim is based on:

       1. Use of the Services by any User in any manner inconsistent with this Agreement; or

       2. Negligence or wilful misconduct of Customer; or

       3. The combination, operation or use of the Services with other services or software not provided by KaaIoT, if such infringement would have been avoided in the absence of such combination, operation or use.

    3. Customer shall indemnify, defend and hold KaaIoT harmless, against any costs, losses, liabilities, and expenses, including reasonable legal costs arising from any claim, suit, action or proceeding relating to or resulting directly or indirectly from:

       1. Use of the Services by any User;

       2. Unauthorized or illegal use of the Services; 

       3. Any claimed infringement or violation by Customer of any intellectual property rights with respect to Customer’s use of the Services outside the scope of this Agreement;

       4. Noncompliance with or breach of this Agreement;

       5. Use of Third-Party Products;

       6. Any access to or use of the Services by a third party; or

       7. Use by KaaIoT of any Customer provided software.

    Customer must not accept any settlement that:

    1. imposes an obligation on KaaIoT (or its Affiliates);
    2. requires KaaIoT to make an admission; or
    3. imposes liability not covered by these indemnifications or places restrictions on KaaIoT without KaaIoT’s prior written consent.

12. LIMITATION OF LIABILITY

    KAAIOT AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY:

    1. FOR ERROR OR INTERRUPTION OF USE, FOR LOSS OR INACCURACY OR CORRUPTION OF DATA, FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, FOR LOST PROFITS OR REVENUE, FOR WORK STOPPAGE, FOR LOSS OF GOODWILL, OR FOR LOSS OF BUSINESS OR POTENTIAL BUSINESS;

    2. FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR

    3. FOR ANY MATTER BEYOND KAAIOT’S REASONABLE CONTROL.

    THE TOTAL LIABILITY OF KAAIOT (WHETHER IN CONTRACT, TORT OR OTHERWISE) UNDER OR IN CONNECTION WITH THIS AGREEMENT OR BASED ON ANY CLAIM FOR INDEMNITY OR CONTRIBUTION SHALL NOT EXCEED ONE HUNDRED (100) PER CENT OF THE TOTAL FEES (EXCLUDING ANY VAT, DUTY, SALES OR SIMILAR TAXES) PAID OR PAYABLE BY CUSTOMER TO KAAIOT DURING THE PRECEDING TWELVE (12) MONTH PERIOD OR, IF THE DURATION OF THE AGREEMENT HAS BEEN LESS THAN TWELVE (12) MONTHS, SUCH SHORTER PERIOD, AS APPLICABLE.

13. 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 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, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 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.

    4.  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.

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

    6. 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.

    7. 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 the 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.