Introduction

By using Kloudless, or otherwise building or distributing a Kloudless application ("Developing on Kloudless"), you agree to be bound by these Terms and Conditions ("Terms"). The Terms govern your access to and use of Kloudless services, the Kloudless API ("API"), any Kloudless developer webpages and documentation, and API SDKs, app keys, and access tokens (collectively, the "Developer Platform"). You may Develop on Kloudless only if you have the legal power to form a contract with us.

If you are Developing on Kloudless on behalf of an organization, you are agreeing to the Terms for that organization and promising that you have the authority to bind that organization to these Terms. In that case "you" and "your" will refer to that organization. The exception to this is if the organization has a separate written agreement with Kloudless covering the use of the Developer Platform, in which case that agreement will govern such use.

Your Apps

A "Kloudless App" is any application that is developed on Kloudless. A Kloudless App may be referred to as a "Kloudless Project". Kloudless Apps must comply with the Kloudless policies and requirements described in these Terms, which may be modified from time to time. We may revoke access after providing you with at least 30 days notice if we reasonably believe you are in violation of these Terms. Notwithstanding the above, we may revoke access immediately if we reasonably believe you or your Kloudless App has attempted a Prohibited Action described below.

Development "Your App" and "Your Kloudless App" refer to any Kloudless App you create or are the primary owner of. You accept responsibility for all traffic originating from Your Kloudless Apps. You agree to take the necessary steps to protect Your Apps' authentication keys, tokens, secrets, and security credentials.

You are solely responsible for all use (whether or not authorized) of the Developer Platform under Your App(s). You are solely responsible for all acts of anyone who has access to or otherwise uses Your Kloudless App ("End Users" or "users”). Any and all actions taken using Your Kloudless App or credentials, keys, secrets, or tokens created by or for Your App will automatically be deemed to be actions taken by you, with all consequences including service termination, civil, and criminal penalties.

Sharing Your App You may share access to Your Kloudless App by inviting other individuals to join a team that grants access to Your App's keys, tokens, or secrets. This constitutes a "Shared App", owned by You, and is still Your App. You remain solely responsible for all use of Your Apps as described above, including Shared Apps, unless You transfer ownership of Your App and are no longer the primary owner of the Shared App.

Notwithstanding the above, if You have agreed to pay any fees to use the Developer Platform, You must not and must not attempt to share, sublicense, sell, rent, lease, transfer, assign (except as expressly permitted in these Terms) your Kloudless Developer account, Your Apps, or Your Apps' keys, secrets, and tokens to any third-party individual or organization without written approval from Kloudless, including but not limited to any affiliates, associates, partners, or entities unless such entity is a wholly owned subsidiary.

Prohibited Actions You and Your Kloudless App must not and must not attempt to:

• plant malware or otherwise use Kloudless to distribute malware
• send unsolicited communications, promotions, advertisements, or spam
• publish anything that is fraudulent, misleading, or infringes another's rights
• impersonate or misrepresent your affiliation with any person or entity
• publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred
• violate applicable law in any way or the privacy of others
• reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the Developer Platform
• access or use keys, tokens, or secrets granted by or created for a Kloudless App other than Your Apps, unless the App is a Shared App that the App's owner has granted You access to such keys, tokens, or secrets for
• maintain or use multiple Kloudless Developer accounts in a substantially similar manner, without a paid subscription to a Plan.

Using the Platform We may review and make changes to the Developer Platform, but you acknowledge that we are not obligated to do so. We are not responsible for files, user posts on our forums or elsewhere, or any other information accessible through the Developer Platform.

You are responsible for any dealings with the platforms and operating systems on which your Kloudless API Apps are distributed and used, as well as the users of your Kloudless API Apps.

End User Data If you collect any personally identifiable information via your Kloudless API App, you must ensure that it is collected, processed, transmitted, maintained and used in compliance with all applicable laws and a privacy policy that you post and make available to users. You must comply with the terms and conditions of your privacy policy and employ reasonable measures to protect that personally identifiable information.

Underlying Connectors The Kloudless API enables your Kloudless API Apps to access information from third-party services through Kloudless' integrations with those services ("Connectors"). We strongly suggest you read and understand the Terms of Service and Privacy Policies for each third-party service you plan on accessing through the Kloudless API. You are responsible for ensuring that your Kloudless API Apps are compliant with their Terms of Service and Privacy Policies.

Developer License

You grant to Kloudless a non-exclusive, non-transferable license, while you continue to support a Kloudless API App, to use your Marks and descriptive materials you publish about your Kloudless API App solely in connection with the promotion of Kloudless services accessible through your Kloudless API App, and to acknowledge or promote your Kloudless API App. Any use must be in accordance with applicable law and not inconsistent with your trademark usage guidelines (except to the extent they require further permission for the uses described above). We agree and acknowledge that except for the limited license above, these Terms do not grant Kloudless any rights to your Marks and that all goodwill generated through use of such marks benefits you.

These Terms do not grant us any ownership of your Kloudless API App, intellectual property, or Marks.

Term and Fees

Term — All paid subscription Plans include a one year term commencing on an agreed-upon date (the "Term"), unless indicated otherwise. You can upgrade your Plan at any time. Plan upgrades will result in a pro-rated fee for the new plan based on the number of days left in the Term. The Plan automatically renews for additional 12-month Terms at the anniversary of the then-current Term. Please refer to "Termination" below for information on how to opt out of renewing your subscription Plan for an additional Term.

Fees and Billing — You will pay all fees according to the specific Plan you choose. Unless otherwise indicated in the applicable Plan or if you have a separate agreement with us, we will invoice you annually in advance for the base fees for using the Kloudless API, and at the end of each calendar quarter for any usage-based fees you may have accrued for each month that quarter. Payment of all fees will be due within 30 days of the invoice date unless otherwise indicated on the invoice. All payments must be made in U.S. dollars. Late payments will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. All payments required exclude all sales, value-added, use, on other taxes and obligations, all of which you will be responsible for and will pay in full.

Fee Changes — Kloudless may change your Plan's fees for the upcoming Term by up to 2.5% + the percentage change in CPI-U (U.S. City Average; unadjusted; all items less food and energy) since the beginning of the previous Term, or by providing written notice at least 60 days prior to the commencement of the next Term. Any changes to Fees take effect upon renewal when the next Term commences.

Indemnification by You

Except to the extent that we're obliged to indemnify You in the section above, You will indemnify, defend and hold Kloudless, its officers, directors, employees, agents, and affiliates harmless from any third-party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees) relating to:

1. any allegation that your Kloudless API Apps or the use of them infringes the intellectual property rights of any third party
2. your or your End Users’ breach of these Terms
3. any act or omission by you in connection with your use of the Developer Platform
4. your or your End Users' use of the Kloudless API or Developer Platform
5. your collection or use of your End Users' information and data

We will be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing. You may not settle any claims that limit our rights without our prior written consent (which will not be unreasonably withheld).

No Warranties; Limitation of Liability

The Developer Platform, Kloudless API, Kloudless services, and other information on or accessible through the Developer Platform, Kloudless API, or Kloudless services are provided by Kloudless on an "as-is" and "as-available" basis without warranty of any kind, either express or implied. Kloudless expressly disclaims all warranties, express or implied, regarding the Developer Platform, Kloudless API, and Kloudless services, including but not limited to warranties of merchantability, fitness for a particular purpose, non-infringement, security or accuracy, and any warranties arising from course of dealing, course of performance, or usage of trade. Without limiting the generality of the foregoing, Kloudless does not warrant that: (1) the information on the Developer Platform or Kloudless services is correct, accurate or reliable; (2) the functions contained on the Developer Platform, Kloudless API, or Kloudless services will be uninterrupted or error-free; or (3) defects will be corrected, or that the Developer Platform Kloudless API, or Kloudless services or the Server that makes the Developer Platform, Kloudless API, and Kloudless services available is free of viruses or other harmful components.

Kloudless will have no liability or obligation with respect to any (a) Claim and any Losses related thereto arising out of your use of the Kloudless API or Developer Platform in breach of these Terms or (b) Infringement Claim and any Losses related thereto arising out of the combination, operation, or use of the Kloudless API or Developer Platform with other applications, portions of applications, products, or services where the Kloudless API or Developer Platform would not by themselves, and without modification, be infringing.

In connection with any warranty, contract, or common law tort claims, we shall not be liable for incidental or consequential damages, lost profits, or damages resulting from lost data or business interruption resulting from the use or inability to access and use the Developer Platform, Kloudless API, or Kloudless services even if we have been advised of the possibility of such damages.

To the maximum extent permitted by applicable law, our total cumulative liability to you or any third-party under these Terms, from all causes of action and all theories of liability, will be limited to and will not exceed the fees actually paid to us during the 12 months preceding the claim giving rise to such liability.

Some jurisdictions, including the State of New Jersey, do not allow exclusion of certain warranties or limitation of certain liabilities. Therefore, some of the above limitations in this section may not apply to you.

Nothing in these Terms shall affect any non-waivable statutory rights that apply to you.

Confidentiality

Definition of Confidential Information — For the purposes of the Terms, "Confidential Information" means any business or technical information that either one of us discloses to the other, in writing, orally, or by any other means.

Restrictions on Use and Disclosure — Neither of us will use the other's Confidential Information, except as permitted or contemplated under this Terms and any other written agreement covering the use of the Developer Platform. Each of us agrees to maintain in confidence and protect the other party's Confidential Information using at least the same degree of care as we use for each of our own information of a similar nature, but in all events at least a reasonable degree of care. Each of us agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other's Confidential Information, including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (collectively, "Representatives") (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Confidentiality section, and (iii) who are informed of the nondisclosure obligations imposed by this Confidentiality section. Each of us will be responsible for all acts and omissions of our Representatives. The foregoing obligations won't restrict either of us from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable them to contest such order or requirement. The restrictions set forth in this Confidentiality section shall remain in effect during the subscription term, as agreed in a separate written pricing agreement, and for five (5) years thereafter.

Exclusions — The restrictions set forth above will not apply with respect to any information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a third party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party's Confidential Information.

Governing Law and Jurisdiction

The Terms will be governed by and interpreted in accordance with the laws of the State of California, without giving effect to any principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this Agreement.

Miscellaneous

Assignment — Neither party is allowed to assign or transfer any of your rights or obligations in the Terms, in whole or in part, by operation of law or otherwise, and any attempt by you to do so without our consent will be null and void. Notwithstanding the foregoing, either party may, upon notice and without the other party's consent: (i) in connection with a merger, reorganization or sale of all or substantially all of the assets or equity of such party, assign these Terms in its entirety to such party's successor; and (ii) assign these Terms in its entirety to any company, partnership or other legal entity which from time to time directly or indirectly Controls, is Controlled by or is under the common Control with such Party, where "Control" means the legal power to direct or cause the direction of the general management of the company, partnership or other legal entity.

Severability — In the event that any provision of these Terms are deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform this Agreement to give as much effect as possible to that provision. Any provision that can't be modified or reformed in this way will be deemed deleted, and the remaining provisions of these Terms will continue in full force and effect.

Waiver — A party's obligations under these Terms can only be waived in writing by an authorized representative of the other party, and such waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

Force Majeure — Each party will be excused from performing under the Terms to the extent that the party is unable to perform due extraordinary causes beyond the party's reasonable control. That might include things like acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure, and power failures.

Independent Contractors — We're each independent contractors with respect to the subject matter of the Terms. Nothing contained in the Terms will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.

Amendments; Entire Agreement — No modification, change, or amendment of these Terms will be binding upon the parties, unless we both agree to the change in a writing signed by each of our authorized representatives. The Terms, including any separate pricing agreements agreed to, constitute the entire agreement and understanding of the parties with respect to its subject matter, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to its subject matter.

Contact Us

Any questions beyond what this page can answer should be addressed to support@kloudless.com.

Effective date: July 15, 2020