Klevu has updated its Terms of Service as of November 19, 2018.
There are no major changes in the substance of the terms and no specific action is required from our customers.
This Software Subscription Service (SaaS) Agreement (the “Agreement”) sets forth the obligations and conditions between you (the “Client”) and Klevu Oy, a Finnish limited liability company (“Provider”), relating to the use of the Services defined herein. Please read this Agreement carefully. Client’s use of the Services is expressly conditioned on the Client’s acceptance of this Agreement.
BY SIGNING THIS AGREEMENT AND/OR BY USING THE SERVICES, CLIENT AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
NOW THEREFORE, in consideration for the mutual promises contained herein and other good and valuable consideration, the parties agree as follows:
Provider’s cloud servers will be used to cater the search to its Authorized Users. The Provider takes no responsibility for the Client’s own network infrastructure, from where, the Klevu search will be provisioned. Provider shall use commercially reasonable efforts to make the Services available on a 24×7 basis (twenty-four hours per day, seven days per week) during the Term except for: (i) scheduled system back-up or other on-going maintenance as required and scheduled in advance by Provider, or (ii) for any unforeseen cause beyond Provider’s reasonable control, including but not limited to internet service provider or communications network failures, denial of service attacks or similar attacks, or any force majeure events set forth in this Agreement. Provider will monitor performance indicators on the systems and network infrastructure (its own and that of third party suppliers) in order to gauge the overall performance of its hosting services, and will take reasonable steps to address systems and network infrastructure as required to maintain satisfactory performance of the Software and Service. Provider further reserves the right to monitor and reasonably restrict Client’s ability to use the Services if Client is using excessive computing resources, which are impacting the performance of the Services for other subscribers. Provider agrees to notify Client in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or work- around solution.
Provider shall maintain the Software and/or Services and provide all patches and fixes to the Software and/or Services at no additional cost at its end. However, the said maintenance shall not include any additional functionality, or custom programming, which the Provider, at its discretion, may provide at an additional cost as otherwise agreed between the parties. In case of a dedicated hosted solution, where the Software and/or Services are hosted at the Client’s end, Client will be responsible for maintaining the hardware and is also expected to provide exclusive, continuous access to Provider to provision the services. If Client makes any changes in the allocated dedicated server(s) to the Provider, in case of reinstallation of services requiring at Client end, such changes and support will be considered as a paid service.
Client is responsible for updating and installing maintenance updates to its environment. Provider shall not cover any expenses related to Client’s maintenance updates.
Client is responsible to maintain server at its end and provide exclusive, continuous access to Provider to provision the services. If Client make changes in allocating dedicated server to Provider, in case of reinstallation of services requiring at Client end, such changes and support will be considered as a paid service.
Provider does not provide any customization work for the Client, unless separately agreed.
If separately agreed by the parties, Provider may help in installation and maintenance of the Client environment. However, the Client must provide Provider a staging environment, i.e., an identical system to their live environment, and access to it, in which Provider can provide support for the Client.
Provider may support go-live situations, if separately agreed by the parties in advance.
The Term of this Agreement is expected to commence on the Effective Date and shall be valid as per agreement between the Client and the Provider. Unless otherwise agreed, the subscriptions shall renew automatically for subsequent subscription periods, until terminated by either party subject to 2 days’ notice prior the end of subscription period. The length of the subscription period (either 1 month, 3 months, 6 months or 12 months) shall be agreed by the Client and the Provider.
Client shall be in default of this Agreement if Client fails to make any payment when due and fails to cure said default within five (5) days after receipt of written notice thereof from Provider. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from the non-breaching party. If a party is in default, the non- breaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. In the event Client breaches or attempts to breach any of the provisions of this Agreement, Provider shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Client hereby acknowledging the inadequacy of any remedy at law.
Provider warrants that it has the power and authority to grant the subscription for the Services granted to Client hereunder. EXCEPT FOR THE WARRANTY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS,” AND PROVIDER DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABLITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Remedy and Liability. Client represents that it accepts sole and complete responsibility for: (a) the selection of the Services to achieve Client’s intended results; (b) use of the Services; (c) the results obtained from Services; and (d) the terms of any contracts between Client and Authorized Users. Provider does not warrant that the Client’s use of the Services will be uninterrupted or error-free. Client shall not assert any claims against Provider based upon theories of negligence, gross negligence, strict liability, fraud, or misrepresentation, and Client shall defend Provider from any demand or claim, and indemnify and hold Provider harmless from any and all losses, costs, expenses, or damages, including reasonable attorneys’ fees, directly or indirectly resulting from Client’s use of the Services, an Authorized User’s use of the Services, and/or any agreement between the Client and an Authorized User based on or in any way related to the Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for Provider’s breach of Section 8 (Confidentiality), under no circumstances shall Provider be liable for any loss, costs, expenses, or damages to Client in an amount exceeding the Subscription Fee actually paid to Provider by Client for the previous twelve (12) months.
Provider will defend Client against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that the use of the Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a ” Claim Against client”), and will indemnify Client from any damages, attorney fees and costs finally awarded against Client by a court of competent jurisdiction as a result of, or for amounts paid by Client under a court-approved settlement of, a Claim Against client, provided Client (a) promptly give Us written notice of the Claim, (b) give Provider sole control of the defense and settlement of the Claim Against client (except that Provider may not settle any Claim Against client unless it unconditionally releases Client of all liability), and (c) give Provider all reasonable assistance, at Provider expense. If Provider receives information about an infringement or misappropriation claim related to a Service, Provider may in own discretion and at no cost to Client (i) modify the Service so that it no longer infringes or misappropriates, without breaching Provider warranties, (ii) obtain a license for Client’s continued use of that Service in accordance with this Agreement, or (iii) terminate Client subscriptions for that Service upon 45 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against client arises from content, an application not related to or powered by us or Client’s or Authorized Customer’s breach of this Agreement.
Client will defend Provider against any claim or demand made against Provider by a third party alleging that Client data, or Client’s or Authorized Customer’s use of any Service or content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against provider”) and will indemnify Provider from any damages and attorney fees awarded against provider, provided that Provider (a) promptly give Client written notice of the Claim Against provider, (b) give Client sole control of the defense and settlement of the Claim Against provider, and (c) give Client all reasonable assistance.
Without prejudice to the generality of the foregoing, the Client shall not be liable for any indirect, special or consequential damages, or loss of profits, business, revenues or contracts, suffered by the Provider as a result of such Claim Against provider.
BY SIGNING THE AGREEMENT AND/OR BY USING THE SERVICE AND/OR SOFTWARE, CLIENT ACKNOWLEDGES THAT CLIENT HAS READ THESEGENERAL TERMS, UNDERSTOOD THEM, AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. CLIENT FURTHER AGREES THAT THE AGREEMENT AND THESE TERMS SHALL BE SUPERIOR TO, AND SUPERCEDE ANY CONFLICTING OR INCONSISTENT TERMS CONTAINED IN ANY PURCHASE ORDERS, OTHER DOCUMENTS PROVIDED TO THE PROVIDER BY CLIENT, OTHER DOCUMENTS PROVIDED TO CLIENT BY THE PROVIDER, OR AGREEMENTS PREVIOUSLY ENTERED INTO BY THE PARTIES.
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