Last Modified: 22 August 2023
Welcome to the Kombai, Inc. (“Kombai”, “us” “we” or “our”) website. Please read these Terms of Service (the “Terms”) carefully because they govern your use of our websites, including Kombai.com and any other websites that we may later own or operate (each, a “Site,” and collectively, the “Sites”); our web applications (“Apps”), our application program interfaces (“APIs”) and our collaboration tools and other products and services we may later own or operate (collectively, with the Sites, Apps, and APIs, the “Services”).
By using the Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
We may modify the Terms at any time, at our sole discretion. If we do so, we will let you know either by posting the modified Terms on the Site or through other communications. If you continue to use the Services after such a change, you are indicating that you agree to the modified Terms. We may also change or discontinue all or any part of the Services, at any time and without notice or liability at our sole discretion.
Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, including without limitation the Usage Limitations, Kombai will make available to Customer during the Subscription Period on a non-exclusive, non-transferable (except in compliance with Section 13.8), and non-sublicensable basis, access to and use of the Services, solely for use by Authorized Users. Such use is limited to Customer's internal business purposes and the features and functionalities specified in the Order. Kombai shall provide Customer with the necessary access credentials to allow Customer to access the Services.
Subject to and conditioned on Customer's compliance with the terms and conditions of this Agreement, Kombai hereby grants to Customer a non-exclusive, non-transferable (except in compliance with Section 13.8), and non-sublicensable license to use the Documentation during the Subscription Period solely for Customer's internal business purposes in connection with its use of the Services.
Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of any Kombai IP, whether in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation to any third party; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from any Kombai IP; (v) use any Kombai IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) access or use any Kombai IP for purposes of competitive analysis of Kombai or the Services, the development, provision, or use of a competing software service or product, or any other purpose that is to Kombai's detriment or commercial disadvantage; (vii) bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of valid access credentials; or (vii) input, upload, transmit, or otherwise provide to or through the Services any information or materials that are unlawful or injurious, or that contain, transmit, or activate any Harmful Code.
Kombai reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Kombai IP.
Notwithstanding anything to the contrary in this Agreement, Kombai may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Kombai reasonably determines that (A) there is a threat or attack on any of the Kombai IP; (B) Customer's or any Authorized User's use of the Kombai IP disrupts or poses a security risk to the Kombai IP or to any other customer or vendor of Kombai; (C) Customer, or any Authorized User, is using the Kombai IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Kombai's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Kombai has suspended or terminated Kombai's access to or use of any Third-Party Products required to enable Customer to access the Services; or (iii) in accordance with Section 5.1 (any such suspension described in subclause (i), (ii), or (iii), a "Service Suspension"). Kombai shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Kombai shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Kombai will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
Notwithstanding anything to the contrary in this Agreement, Kombai may monitor Customer's use of the Services and collect and compile Aggregated Data. As between Kombai and Customer, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Kombai. Customer acknowledges that Kombai may compile Aggregated Data based on Customer Data input into the Services. Customer agrees that Kombai may (i) make Aggregated Data available to third parties including its other customers in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law.
Customers may only use the Services if they are old enough to consent (by themselves and not by a parent or guardian) to share their data under applicable law. For example, you must be 13 years or older under most United States law or 16 years or older under California or European Union law.
Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions.
Kombai may from time to time make Third-Party Products available to Customer or Kombai may allow for certain Third-Party Products to be integrated with the Services to allow for the transmission of Customer Data from such Third-Party Products into the Services. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. By authorizing Kombai to transmit Customer Data from Third-Party Products into the Services, Customer represents and warrants to Kombai that it has all right, power, and authority to provide such authorization.
Customer has and will retain sole responsibility for: (i) all Customer Data, including its content and use; (ii) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (iii) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (iv) the security and use of Customer's and its Authorized Users' access credentials; and (v) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users' access credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
During the Subscription Period, Kombai will use commercially reasonable efforts to provide Customer with basic customer support via Kombai's standard support channels during Kombai's normal business hours.
Where paid for services are agreed between Kombai and Customer per the Order, Customer shall pay Kombai the fees ("Fees") identified in the Order without offset or deduction at the cadence identified in the Order (e.g., monthly or annually). Fees paid by Customer are non-refundable. If Customer fails to make any payment when due, and Customer has not notified Kombai in writing within ten (10) days of the payment becoming due and payable that the payment is subject to a good faith dispute, without limiting Kombai's other rights and remedies: (i) Kombai may charge interest on the undisputed past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Kombai for all reasonable costs incurred by Kombai in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Kombai may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Kombai's income. To the extent that Kombai is required by law to pay any such taxes, duties, or other charges to any governmental or regulatory authority, Kombai may invoice Customer for such taxes, duties, or other charges and Customer will pay such invoiced amounts in accordance with this Agreement.
From time to time during the Subscription Period, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as "confidential" or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, "Confidential Information"). Except for Personal Information, Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party's Confidential Information.
The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity except to the receiving Party's employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder ("Representatives"). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.
On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Customer will ensure that its Customer Data, and its use of such Customer Data, complies with this Agreement and any applicable law. Customer is responsible for properly configuring and using the Services and taking its own steps to maintain appropriate security, protection, and backup of Customer Data. Customer may not store or process protected health information (as defined in HIPAA) using the Services unless Customer signs a Business Associate Agreement with Kombai. Customer may not store any payment cardholder information using the Services without Kombai's prior written approval.
Customer acknowledges that, as between Customer and Kombai, Kombai owns all right, title, and interest, including all intellectual property rights, in and to the Kombai IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
Kombai acknowledges that, as between Kombai and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Kombai a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Kombai to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Data. Customer may delete or export the Customer Data at any time through the features and functionalities made available via the Services or by contacting Kombai.
If Customer or any of its employees or contractors sends or transmits any communications or materials to Kombai by mail, email, telephone, or otherwise, suggesting or recommending changes to the Kombai IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Kombai is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback so long as Kombai does not identify Customer as the source of the Feedback without Customer's prior approval.
The Kombai IP is provided "as is" and Kombai hereby disclaims all warranties, whether express, implied, statutory, or otherwise. Kombai specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Kombai makes no warranty of any kind that the Kombai IP, or any products or results of the use thereof, will meet Customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free.
Customer shall indemnify, hold harmless, and, at Kombai's option, defend Kombai from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property or other rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; or (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Kombai or authorized by Kombai in writing; in each case provided that Customer may not settle any Third-Party Claim against Kombai unless Kombai consents to such settlement, and further provided that Kombai will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
This section 10.3 sets forth Customer's sole remedies and Kombai's sole liability and obligation for any actual, threatened, or alleged claims that the services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
Except for: (i) a party’s breach of its confidentiality obligations; (ii) a party’s indemnity obligations; or (iii) a party’s gross negligence, fraud, or willful misconduct ("Excluded Liabilities"), (a) in no event will either party be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (1) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (2) increased costs, diminution in value or lost business, production, revenues, or profits; (3) loss of goodwill or reputation; (4) use, inability to use, loss, interruption, delay or recovery of any data, or breach of data or system security; or (5) cost of replacement goods or services, in each case regardless of whether such party was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable; and (b) in no event will either party’s aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amounts paid and/or payable to Kombai under this agreement in the twelve (12) months immediately preceding the claim; provided that, notwithstanding the foregoing, Kombai's aggregate liability arising out of or relating to any excluded liabilities will not exceed three times (3x) the total amounts paid and/or payable to Kombai by Customer under this agreement in the twelve (12) months immediately preceding the claim.
The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to Section 12.2, will continue in effect for the period identified in the Order (the "Initial Subscription Period"). This Agreement will automatically renew for additional successive terms equal to the length of the Initial Subscription Period unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Subscription Period" and together with the Initial Subscription Period, the "Subscription Period").]
In addition to any other express termination right set forth in this Agreement:
Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Kombai IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Kombai IP and certify in writing to the Kombai that the Kombai IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
This Section 12.4 and Sections 1, 5, 6, 8, 9, 10, 11, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement or as identified on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized signed for on delivery courier (with all fees pre-paid), or email (with confirmation of transmission). All email Notices to Kombai must be sent to support@Kombai.com. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
Kombai may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. Kombai will provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer's account on the Services or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Services after the effective date of the revised Agreement, such access and use will constitute Customer's acceptance of the revised Agreement beginning at the next Renewal Subscription Period or, if Customer enters into a new Order with Kombai, as of the date of execution of such Order.
No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the Party granting the waiver.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder must be instituted in the federal courts of the United States or the courts of the State of California in each case located in San Francisco County, California and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Kombai. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
Each of the Documentation and the software components that constitute the Services is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Kombai may identify Customer as a user of the Services and may use Customer's name, logo, and other trademarks in Kombai's customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Customers may use Kombai’s name, logo and other trademarks to list or display the outputs they generate using Kombai. Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party's prior written approval.