PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY CLUSTER LABS, INC. (“CLUSTER LABS”). YOUR USE OF THE SERVICES IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY CLICKING THE “SUBMIT” (OR SIMILAR) BUTTON, OR BY USING THE SERVICES IN ANY MANNER (AS APPLICABLE) (I) YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER,” “YOU,” “YOUR”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND (II) YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CUSTOMER.
1. Access to Service. Subject to Customer’s compliance with the terms and conditions of this Agreement: (i) Cluster Labs grants Customer the right to access and use the Cluster Labs services ordered by Customer (collectively, the “Service,” or “Services”) during the Term (as defined below) but only for the internal business purposes of Customer, only as provided herein and only in accordance with Cluster Labs’ applicable user documentation; and (ii) Cluster Labs grants Customer, during the Term, a non-exclusive, non-sublicensable, non-transferable license to use the software development kits provided to Customer by Cluster Labs (the “SDK”) but only to develop one or more Customer software applications and only to communicate with the Services (each a “Customer Application”),. Without limiting the foregoing, Customer’s use of the Services and SDK shall be subject to any additional limitations (e.g., maximum number of Customer Applications, platform restrictions, API calls, etc.) which are set forth on the Services, and shall be subject to the payment of all applicable fees.
2. Modifications. Cluster Labs shall have the right (but not the obligation), at its sole discretion, to modify or replace this Agreement, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Services or by sending you an email. Cluster Labs may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. It is your responsibility to check this Agreement periodically for changes. Your continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.
3. Services and Support. Subject to the terms and conditions of this Agreement Cluster Labs will: (i) provide Customer with access to the Services through the internet. Cluster Labs will use reasonable efforts to give customer prior written notice of any such modification; (ii) Cluster Labs will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, SP reserves the right to suspend Customer’s access to the Services: (a) for scheduled or emergency maintenance, or (b) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Cluster Labs; (iii) Cluster Labs will provide reasonable support to Customer for the Services from Monday through Friday during Cluster Labs’ normal business hours.
5. Confidentiality; Ownership. Customer acknowledges that, in the course of using the Services and performing its duties under this Agreement, it may obtain, learn or develop information relating to the Services and/or to Cluster Labs or its suppliers or licensors (“Proprietary Information”), including, but not limited to, the existence of the Services, SDKs, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, marketing and financial information, plans and data. During and after the term of this Agreement, Customer shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose, Proprietary Information, unless such Proprietary Information becomes part of the public domain without breach of this Agreement by Customer, its officers, directors, employees or agents. Except for the rights expressly granted under this Agreement, as between the parties, Cluster Labs retains all right, title, and interest in and to the Services and the SDK, and all other products, works, and other intellectual property created, used, or provided by Cluster Labs for the purposes of this Agreement. Cluster Labs shall be permitted to freely exploit all data generated by or on behalf of it in connection with the Services and to provide such data to third parties (including, without limitation, App Data (as defined below)), so long as such data is provided in the aggregate and can in no way be linked specifically to Customer. Customer shall, and hereby does, grant Cluster Labs a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its users relating to the operation of the Service. Nothing in this Agreement will impair Cluster Labs’ right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
6. Fees. Customer shall pay Cluster Labs all fees applicable to the Services ordered by Customer (“Fees”) in accordance with the payment terms set forth on the Service at https://launchkit.io/users. All Fees paid to Cluster Labs hereunder are nonrefundable. Any amounts payable hereunder are exclusive of all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments. Customer shall pay all such taxes and governmental assessments associated with the Services (excluding taxes based on Cluster Labs’ net income), unless Customer provides to Cluster Labs a valid tax-exempt certificate. Upon notice in the form of an update of the payment terms set forth on the Service and an email to Customers, Cluster Labs may change the Fees from time to time hereunder; provided that any change in Cluster Labs shall not go into effect until the commencement of the next Customer pay period that follows such notice.
7. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service or SDK (except to the extent applicable laws specifically prohibit such restrictions); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or SDK; (iv) use the Service or SDK for the benefit of a third party or in violation of Cluster Labs documentation provided to Customer; (v) remove or otherwise alter any proprietary notices or labels from the Service, SDK, or any portion thereof; (vi) block, disable, hide or limit in any way the ability of any device (whether or not such device includes a Customer Application) to access the Service or any portion or functionality of or enabled by the Service; (vii) modify or extend the SDK to any extent; (viii) contaminate, incorporate, integrate, link or bundle any portion of the SDK with any software code governed by open source, community source, freeware, shareware, or other public license or distribution model software; (ix) use the Service or SDK to build an application or product that is competitive with any Cluster Labs product or service. Customer is responsible for all of Customer’s activity in connection with the Service; or (x) remove or export the Services, SDK or any Proprietary Information or any direct product thereof from the United States. Customer shall use the Service in compliance with all applicable laws and regulations. Customer shall not (and shall not permit any third party to), directly or indirectly, (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any material on or through the Service, that: (1) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (2) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (3) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (4) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Cluster Labs or any third party; or (5) impersonates any person or entity, including any employee or representative of Cluster Labs. Customer understands that the SDK and the Services may provide functionality which allows Customer to send data or information from the Customer Application(s) to Cluster Labs, which may include information regarding or relating to end users of the Customer Application(s) (collectively, “App Data”). Customer represents, warrants and covenants to Cluster Labs that Customer has and shall maintain all rights as are required to permit the collection of App Data by Cluster Labs as contemplated by this Agreement, and to allow Cluster Labs to access, use, store, display, disclose, transfer and sell App Data pursuant to this Agreement. Additionally, Customer shall not interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service, or bypass any measures Cluster Labs may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service).
8. Disclaimer. THE SERVICE AND THE SDKS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
9. Term; Termination. This Agreement shall commence upon Customer’s first use of the Services. This Agreement shall continue for the applicable subscription period set forth on the Services at https://launchkit.io/users during the ordering process (the “Term”) unless earlier terminated in accordance herewith. If Customer is in material breach of this Agreement, Cluster Labs reserves the right to immediately suspend access to the Services until such breach is materially cured. Without limiting the foregoing, either party may terminate this Agreement by written notice to the other party in the event that such other party materially breaches this Agreement and does not materially cure such breach within thirty (30) days of such notice. In addition, Cluster Labs may suspend Customer’s access to the Service or terminate this Agreement if Customer’s use of the Services places an unreasonable load on the Services or otherwise interferes with Cluster Labs’ ability to provide the Services to other customers (as determined by Cluster Labs in its reasonable discretion). Upon termination, the rights and licenses granted to Customer hereunder shall terminate and Customer shall immediately return anything Customer has obtained in connection with the Services, together with any and all documents, notes and other materials respecting the Services to Cluster Labs, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect.
10. Limitation of Liability. IN NO EVENT SHALL CLUSTER LABS, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID BY CUSTOMER TO CLUSTER LABS HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO CUSTOMER.
11. Miscellaneous. This Agreement represents the entire agreement between Customer and Cluster Labs with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Cluster Labs with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Cluster Labs' prior written consent, and any action or conduct in violation of the foregoing shall be void and without effect. Cluster Labs may freely assign, transfer or delegate any of its rights and obligations hereunder. The parties agree that the provisions of this Agreement are intended for the benefit of, and are enforceable solely by, the other party, and nothing in this Agreement shall be construed as giving any other person any right, remedy or claim under or in respect of this Agreement or any provision hereof. Customer shall indemnify and hold harmless Cluster Labs from any and all claims, liabilities, damages and/or costs (including but not limited to, reasonable attorneys’ fees) arising in connection with (i) any breach of this Agreement by Customer, (ii) Customer Applications, or (iii) Customer’s use of the Services. Customer acknowledges and agrees that due to the unique nature of Cluster Labs’ Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Customer or third parties to unfairly compete with Cluster Labs resulting in irreparable harm to Cluster Labs, and therefore, that upon any such breach or threat thereof, Cluster Labs shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law (without the requirement of posting a bond). No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. The failure of Cluster Labs to act with respect to a breach of this Agreement by Customer or others shall not constitute a waiver and shall not limit Cluster Labs’ rights with respect to such breach or any subsequent breaches. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
Effective Date: November 3, 2015