This End User License Agreement (“EULA” or this “Agreement”) is between KostaCLOUD, Inc. (“Licensor,” “KostaCLOUD,” “we,” “us,” or “our”) and you, the person or entity (“Licensee,” “you,” or “your”) that accesses and/or uses the Software, the Services, and/or the Documentation (each defined below).
This document contains an arbitration provision that requires, with limited exceptions, you to resolve disputes with us through binding and final arbitration, and requires you to waive your right to participate in any class action against KostaCLOUD. Please read the arbitration provision carefully, and if you do not agree to resolve disputes with us through arbitration, you must not access or use any of the Software or Licensed Materials.
By accepting this Agreement, you also accept the terms of KostaCLOUD’s Acceptable Use Policy, which is fully incorporated by reference into this Agreement and is located here: [https://kostacloud.com/acceptable-use.html].
For the purposes of this EULA:
Grant of License
The Licensed Materials are licensed, not sold, to you. Subject to your compliance with the terms of this EULA including your timely payment of all applicable license fees, KostaCLOUD hereby grants to you a personal, non-exclusive, non-transferable, non-assignable, worldwide right to access and use the Licensed Materials during the period of time for which you have paid the applicable license fee to KostaCLOUD (the “License”).
Other License Types: In addition to a “full version” release of the Licensed Materials, we may designate or release the Licensed Materials as a pre-release or “beta” version (“Beta Version”), or as an educational version intended for use only by students (“Educational Version”). The version of the Licensed Materials provided to you can be determined by accessing and/or by viewing the “About” information in the Software’s on-screen drop down menu. Additional terms applicable to these versions of the Licensed Materials are as follows:
Hosted Solution. The Software is made available to you on a hosted (i.e., cloud-based) basis only; you will not receive, nor be entitled to receive, a physical or virtual copy of the Software. You must provide all equipment and internet access necessary to access the Software in the cloud. You are solely responsible for any costs you incur by accessing or viewing the Software through your computer or mobile device.
Communication. During the term of this EULA, you authorize us to communicate with you regarding the Licensed Materials and any of our services using SMS, MMS, or email, or through any other technology or means of communication now known or which may be developed in the future. This authorization shall be effective regardless of whether you have placed your contact information on a “do not call” list or similar registry. This authorization shall continue until this Agreement is terminated, in which case all further communications to you will be handled in accordance with applicable law.
Access; Usage. KostaCLOUD may provide you with access to application programming interfaces (“APIs”) for the duration of the applicable License subscription period. Subject to your compliance with the terms of this EULA including your timely payment of all applicable license fees, KostaCLOUD hereby grants to you a personal, non-exclusive, non-transferable, non-assignable, worldwide right to access and use the APIs during the period of time for which you have paid the applicable license fee to KostaCLOUD. All APIs are confidential and KostaCLOUD’s proprietary property.
Developments. If you develop any applications, services, modules, or components using all or any portion of the APIs (each a “Development”), you may use the Development with third-party software or hardware, but only if the Development does not disclose, make available, incorporate, or embody any part of the APIs and/or the Licensed Materials. KostaCLOUD does not acquire ownership in your Development, and by using the APIs you do not acquire ownership of any rights in the APIs or the content that is accessed through the APIs. You hereby grant us a paid-up, royalty-free, non-exclusive, worldwide, irrevocable right and license to use, perform, and display your Development and its content for purposes of marketing, demonstrating, and/or answering inquiries about the Licensed Materials given your consent.
Feedback. If you provide feedback to KostaCLOUD about the APIs, you hereby assign to us all rights, title, and interest in and to the feedback. We are free to use, reproduce, disclose, and otherwise exploit the feedback without attribution, payment or restriction. You will not submit feedback that is subject to a license or that you consider to be your confidential or proprietary information.
The Licensed Materials are licensed, not sold, to you. KostaCLOUD is, and at all times shall remain, the owner of the Licensed Materials as well as any trade names, trademarks, service marks and similar designations used in conjunction with the Software and related solutions and products. This EULA does not transfer, assign, or otherwise convey any title, intellectual property rights, or ownership rights in the Licensed Materials or our trademark(s) to you or to any third party. You acknowledge and agree that the Licensed Materials and our trademarks(s), as well as all improvements, revisions, corrections, updates, patches, modifications, enhancements, derivations, and releases of the Licensed Materials, are KostaCLOUD’s proprietary property.
You will be the owner of all original works and content you create using the Licensed Materials (“Your Works”), and KostaCLOUD does not claim any rights in or to Your Works.
Term & Termination
This EULA is effective upon the earlier of your acceptance of this EULA or your initial use of the Licensed Materials, whichever occurs first. This EULA automatically terminates at the end of your applicable License subscription period, unless sooner terminated pursuant to the terms of this EULA. If you have not paid for a subscription period or you are accessing or using the Licensed Materials under a trial, beta, or free license basis, the Licensor may terminate this EULA at any time for any reason by providing you with notice of termination. (Notice may be provided to you by any means reasonably intended to be seen by you. If in Licensor’s determination such alternatives are not readily available, then cessation of your ability to access the Licensed Materials shall be notice of termination.) In addition, Licensor may terminate this EULA for cause if you commit a material breach of this EULA and fail to cure such breach within ten (10) days following your receipt of notice of the breach. This EULA may also be terminated for cause if we do not receive timely payment for the License. Licensor reserves the right to suspend your use and/or access to the Licensed Materials and the Services if Licensor believes, in its reasonable discretion, that you are acting in violation of the terms of this EULA. Upon the termination of this EULA, all licenses granted automatically terminate and your use of the Licensed Materials must immediately cease. Rights and obligations under the sections of this EULA which, by their nature should survive, will survive termination, including but not limited to your payment obligations.
LIMITED WARRANTIES; LIMITATIONS OF LIABILITY; INDEMNIFICATION
Licensor represents that to the best of its knowledge the Software will operate and function in material conformity with the Documentation and when used in accordance with its normal features and functions, the Software does not and will not violate any third-party intellectual property right. Results that are obtained by or through the Software (such as metrics, measurements, specifications, and similar items (collectively, “Results”)) rely on several factors including the accuracy and thoroughness of information you enter into the Software, as well as accuracy, thoroughness, and availability of certain information that we obtain from third party sources. Given the numerous factors that may impact the Results, we cannot and do not guarantee that the Software will be fully operational or that all features and functions will always operate correctly or in an error-free manner, or that the Services, the Results, or any Software-related transactions will be accurate, complete, or error-free.
You expressly agree that your access to and use of the Licensed Materials and the Services is at your own and sole risk. Other than as expressly stated in this Agreement, Licensor makes no representations or warranties with respect to the Licensed Materials, the Services, or the Results, all of which are provided for use "as is,” "as available," and “with all faults.” Licensor disclaims all implied warranties including without limitation the implied warranties of merchantability and fitness for a particular purpose, with respect to Licensed Materials, the Services, the Results and your ability or inability to access or use the Licensed Materials, the Services, or the Results. We do not warrant or guarantee that the Licensed Materials, the Services, the Results, or any Software-related transactions will meet your requirements, or that the Licensed Materials, the Services, the Results, or any Software-related transactions are or will be fit for any particular purpose or that defects (if any) will be corrected, or that the content or the server that makes the Licensed Materials available is free of viruses, worms, trojan horses, cancelbots or other harmful components. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
You agree that neither we nor any of our licensors, agents, suppliers, or third party service providers shall be liable to you or anyone else for any indirect, special, incidental, consequential, exemplary, or punitive damages that may arise from your use, misuse, or inability to use the Licensed Materials or Services even if we have been advised of the probability of such damages. This limitation applies for any matter arising out of or relating to this EULA and your use of the Licensed Materials or Services, whether such liability is asserted or based on contract, negligence, or tort. In no event shall our maximum total aggregate liability hereunder for all damages in the aggregate exceed the amounts that you paid KostaCLOUD in the six (6) month period immediately preceding the earliest date on which the first applicable claim arose, or one year of licensing fees or the amounts that are actually paid out under KostaCLOUD’s insurance policy, whichever is greater. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN AGREEMENT WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF WHETHER LICENSEE HAS ACCESSED OR USED THE SOFTWARE. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
You agree to defend, indemnify, and hold us harmless, and our officers, directors, employees, independent contractors, telecommunication providers, and agents harmless, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from your improper use, or inability to use, the Licensed Materials or Services. We shall promptly notify you by electronic mail of any such claim or suit and cooperate fully (at your expense) in the defense of such claim or suit. We shall be provided with counsel of our choosing and shall control the reasonable disposition and settlement of any such claim or suit.
Obligations. A party receiving Confidential Information (defined below) disclosed by the other Party (“Recipient” and “Discloser”, respectively) shall use Discloser’s Confidential Information solely to perform its obligations and/or enforce its rights hereunder and not for any other purpose. Recipient shall not disclose Discloser’s Confidential Information to any third party without Discloser’s prior written consent and shall protect Discloser’s Confidential Information against unauthorized use or disclosure using at least those measures that Recipient takes to protect its own Confidential Information of a similar nature, but in no event using less than reasonable care. Notwithstanding the foregoing, and for the avoidance of doubt, the Parties understand and agree that a Recipient may disclose a Discloser’s Confidential Information to its respective directors, officers, employees, and/or agents who have a bona fide need to know to the information in order to fulfill its obligations under this EULA.
The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body or as may be required by any law or regulation, provided that the party required to make such a disclosure gives as much prior notice to the Discloser as is practicable under the circumstances to enable Discloser to contest such order or requirement at Discloser’s sole cost and expense, and (ii) on a confidential basis to its legal or professional financial advisors. The Parties agree that in the event of a breach of the foregoing, the non-breaching party could suffer irreparable harm, that the total amount of monetary damages for any injury to the non-breaching Party may be difficult or impossible to ascertain, and that the non-breaching party will thus be entitled to seek, without requirement of posting a bond, the temporary, preliminary and/or permanent injunctive relief against the breaching party, its officers, and/or its employees, in addition to such other rights and remedies to which it may be entitled to at law or in equity.
Confidential Information – Defined. “Confidential Information” means and refers to any and all non-public information of a party, including, without limitation, (i) any information relating to a party’s current and planned products and services, technology, techniques, know-how, research, engineering, designs, finances, accounts, procurement requirements, manufacturing, customers, customer lists, business forecasts, marketing, and/or other information that should by its nature be reasonably understood as confidential, and (ii) any other information of a party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that is disclosed orally and is identified as “Confidential” at the time of disclosure. Notwithstanding the foregoing, Confidential Information shall not include information that (i) is or becomes publicly available through no act of the receiving party in breach of this EULA, (ii) was in the possession of the receiving party prior to its disclosure or transfer hereunder as the receiving party can reasonably demonstrate, (iii) is independently developed by the receiving party without reference to the materials comprising the Confidential Information disclosed under this EULA, and/or (iv) is received from another source without any restriction on its use or disclosure.
All issues, claims, disputes, and causes of action arising from or related to this Agreement shall be resolved exclusively and finally by binding arbitration. This means that you waive any right to litigate disputes in a court or before a jury and, further, you shall not be entitled to join, consolidate, or include any claims belonging to or alleged or arising from, by or on behalf of any third party to an arbitration brought hereunder, or to arbitrate any claim as a class action, class representative, class member, or in a private attorney general capacity. Except for undisputed collections actions to recover fees due to us (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the Parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) pursuant to the AAA’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in contract, intellectual property, and information technology transactions. If the Parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator. The arbitration shall take place in our designated office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the Parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the Parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs. Any award of the arbitration shall be final and binding immediately when rendered, and judgment on the award may be entered in any court of competent jurisdiction. If any portion of this arbitration agreement is found unenforceable, the unenforceable portion shall be severed, and the remaining arbitration terms shall be enforced (but in no event will there be a class arbitration).
WAIVER OF CLASS ACTION. LICENSEE ACKNOWLEDGES AND AGREES THAT ANY CONCERNS, RIGHTS, OR DAMAGES TO LICENSEE THAT ARISE FROM OR RELATE TO THE LICENSED MATERIALS ARE PERSONAL TO LICENSEE INDIVIDUALLY, AND LICENSEE HEREBY WAIVES ANY RIGHT OF ACTION HEREUNDER BY CLASS ACTION IN ARBITRATION, JUDICIAL ACTION, OR OTHERWISE (INCLUDING IF FILED IN VIOLATION OF THE ARBITRATION REQUIREMENT ABOVE).
In addition to any other privacy-related provisions in this EULA, you understand and agree that Licensor and its designated third-party solution providers may monitor your use of the Licensed Materials, the Services, and any data arising from or related to transactions conducted using the Software (i) to ensure your compliance with the terms of this EULA, (ii) to gain a better understanding of how the Licensed Materials and the Services are used by end users, and/or (iii) to help ensure that any third party programs or solutions that are used in conjunction with the Software are, and remain, compatible with the Software. The data obtained through such activities (“Usage Data”) may include (i) metadata concerning the features and functions of the Software that you used or accessed, (ii) the type, scope, and frequency of queries performed by you, and/or quotes generated by or provided to you through your use of the Software, and (iii) any errors or issues reported by the Software or by you.
Access. We reserve the right to suspend your access to the Licensed Materials if we believe, in our reasonable discretion, that you have violated the terms of this EULA, or if you have failed to pay any applicable license fees when due. We further reserve the right to suspend your access to the Licensed Materials if we believe, in our reasonable discretion, that such suspension is necessary to protect the security or integrity of the Licensed Materials or any portions of our infrastructure or our designated third party’s infrastructure (if applicable) on which the Licensed Materials are installed or hosted. We further reserve the right to suspend your access to the Licensed Materials without prior notice to you if we believe, in our reasonable discretion, that your access to or use of the Licensed Materials is having, or is likely to have, a negative impact on the speed, availability, or integrity of our servers and/or systems.
Government Rights. As defined in 48 C.F.R. §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, all Licensed Materials provided in connection with this EULA are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Accordingly, if the Licensee is the U.S. Government or any contractor therefore, the Licensee shall receive only those rights with respect to the Licensed Materials as are granted to all other licensees under license, 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 U.S. Government licensees and their contractors. Unpublished rights are reserved by KostaCLOUD under the laws of the United States.
Not a Backup Solution. The data that you enter or save through any account (“Account”) that you maintain with us or through the Licensed Materials is backed up daily; however, such backups may occur at different times and frequencies and, like all backup-related activities, may be subject to hardware, software, or transmission delays, errors, or failures. We cannot and do not warrant or guarantee that backed-up data is or will be retrievable or recoverable in all situations and, for that reason, we strongly advise you to save a local copy of your data and any Results you receive. You agree that you should not, and will not, use or rely upon the Licensed Materials or Services as a backup or disaster recovery solution.
Notices; Electronic Notification. You consent to receive any privacy or other notices, agreements, disclosures, reports, documents, communications, or other records (collectively, “Notices”) electronically. All Notices provided to you electronically will be deemed to be "in writing." You acknowledge and agree that your consent to receive Notices electronically is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act, and that we both intend that the Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means. Any notices that are required to be sent to Licensor shall be sent by email to [email protected] with a required copy to Bradley Gross, Esq., at [email protected].
Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Licensed Materials and the Services. You must comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to ensure that the Licensed Materials are exported, directly or indirectly, in violation of applicable laws.
Age Eligibility. End users under the age of 18 (19 in Nebraska and 21 in Mississippi) must not use the Services without parental consent. If you are not of the age of majority in your jurisdiction (but over the age of 13), you hereby warrant and represent that your parent or legal guardian has reviewed this Agreement with you and agrees that both you and your parent/guardian will be bound hereunder. In no event are the Services intended to be used by, or collect information from, end users under the age of 13.
Governing Law; Venue. This EULA shall be governed under the laws of the state of Florida. The sole venue for all non-arbitrable claims arising from or related to this EULA shall be Miami-Dade County, Florida; provided, however, that a party may bring an action for temporary injunctive relief in any appropriate venue to prevent the actual or anticipated breach of this EULA. In no event shall the U.N. Convention on Contracts for the International Sale of Goods or the Computer Information Transaction Act apply to this EULA or any dispute arising from or related to this EULA.
Limitation Period. Except as otherwise prohibited by law, any claim or action brought by you under or pursuant to this Agreement (“Claim”) must be filed within one (1) year after the date on which the initial cause of action began to accrue, otherwise the Claim is waived.
Force Majeure. We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay our performance.
Amendment. This EULA may be modified by Licensor by providing no less than sixty (60) days prior written notice to you of the anticipated modifications (“Notice Period”). Your continued use of the Software after the Notice Period shall be deemed to be your acceptance of the EULA as modified in the written notice. Notwithstanding the foregoing, KostaCLOUD reserves the right to immediately modify this EULA with subsequent notice to you if, in KostaCLOUD’s sole determination, KostaCLOUD believes that such changes are necessary to comply with applicable law and/or to accommodate urgent or emergency measures aimed at protecting the security or integrity of the Licensed Materials or KostaCLOUD’s networks or technology infrastructure. Except as expressly stated herein, this EULA shall not be amended or modified without Licensor’s prior written consent, which consent may be withheld by Licensor for any reason whatsoever.
Validity. If any provision of this EULA shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of this EULA.
Additional Provisions Applicable to End Users in the European Union & UK
In some countries, the law requires that we put data protection-related provisions in place with you if we Process any Personal Data for you (as those terms are defined in the General Data Protection Regulation ((EU 2016/69) (“GDPR”) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the European Union and the United Kingdom).
In connection with the transfer, Processing or disclosure of Personal Data by End User, and any and all Processing of such Personal Data by KostaCLOUD, the Parties hereby agree and represent, that, as between the Parties:
Personal Data. You agree not to collect, upload, or store any Personal Data using the Software, except as (i) directly authorized by KostaCLOUD, or (ii) intended by features and functions normally made available in and through the Software. You agree not to transmit, disclose, or make available Personal Data to KostaCLOUD or KostaCLOUD’s third-party providers. If you are a business, then you also agree to ensure Business Users’ compliance with the terms of this paragraph.
In rendering its services to an End User, KostaCLOUD will Process Personal Data for the following reasons:
Transfer of Personal Information. We process and store information in the U.S. and other countries. By using the Licensed Materials, you authorize KostaCLOUD to transfer your personal information across national borders and to other countries where KostaCLOUD and its partners operate.
Principles of Processing Personal Data. You and KostaCLOUD each agree and represent that Personal Data is required to be Processed in a manner that is lawful, fair and transparent, and that Personal Data must be:
You shall not upload, Process, transfer, disclose or otherwise make available to KostaCLOUD any Personal Data included in Special Categories of Personal Data (as defined in the GDPR). If you, in contradiction to your undertaking herein, transfer or disclose to KostaCLOUD any Personal Data included in Special Categories of Personal Data, you hereby represent that you have any and all required authorizations, including each applicable Data Subject’s explicit consent, for the transfer of such data to KostaCLOUD.
At the choice of the End User, KostaCLOUD will delete or return to the End User the Personal Data that is Processed by KostaCLOUD after the termination or expiration of this Agreement, and shall delete any existing copies unless permitted to retain such data under applicable law.