Service Subscription Agreement

(Version 1.0) - Effective Since August 15th, 2018

This Service Subscription Agreement (the “Agreement”) contains the terms and conditions that govern the access to and use of the Service (the “Service”) and is an Agreement between Kamino Technologies d.o.o. (“us”, “we”, or “our”) and you or the entity you represent (“you” or “your”). This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or, if earlier, when you use the Service. You represent that you are lawfully able to enter into contracts (e.g. you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity.

Please read this Agreement carefully before using the Service. Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.

By accessing or using the Service you agree to be bound by this Agreement. If you disagree with any part of this Agreement then you may not access or use the Service.

1. Access to the Service

1.1 Account and Authorized Users. To access the Service, you must have an Account associated with a valid email address. You may invite additional Accounts to become Authorized Users within your organization. You may only create one account per email address. You are responsible for all activities that occur under your Account, including those carried out by any Authorized Users associated with your Account.

1.2 Accurate Account Information. When you create an Account with us, you must provide us information that is accurate, complete, and current at all times. Failure to do so constitutes a breach of this Agreement, which may result in immediate termination of your Account on our Service.

1.3 Account Security. You are responsible for safeguarding and maintaining the confidentiality of your Account, including any API keys we provide to you that enable you to send data to the Service (“API Keys”) and the credentials of your and any Authorized User’s Account used to access the Service. You agree not to disclose your credentials to any third party and you agree to promptly notify us upon becoming aware of any breach of security or unauthorized use of your Account.

1.4 Requirements. You shall be solely responsible for providing, installing and maintaining at your own expense all equipment, facilities and services necessary to enable Authorized Users’ access and use of the Service as well as enabling the collection and submission of your Data to the Service.

1.5 Beta Services or Features. From time to time, we may invite you to try our beta services or features under development (“Beta Services or Features”) at no charge. You may accept or decline any such trial at your sole discretion. Beta Services or Features will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services or Features are for evaluation purposes only and not for production use, are not considered part of the Service under this Agreement, are not supported, and may be subject to additional terms. We may discontinue Beta Services or Features at any time at our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service or Feature.

2. Free Trial

2.1 Term. Upon registration on our Service, we will make the Service available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period, or (b) termination by us in our sole discretion. Data Persistence. Any data you enter into the Service and any configurations made by or for you during the trial period will be permanently lost unless you provide us with a valid payment method and billing information to collect the Service usage fees and charges as described on Section 3 of this Agreement.

2.2 Service Availability and Guarantees. During the Free Trial term the Service is provided on an “AS IS” and “AS AVAILABLE” basis, without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance. During the Free Trial term we do not warrant that the Service will function uninterrupted, error free, secure or available at any particular time or location, and that any errors or defects will be corrected.

3. Service Fees and Payments

3.1 Fees. We will calculate and invoice you the fees and charges for Service usage every month. The fees and charges amount is calculated in accordance to the specifications and prices described on the pricing page on our website (https://kamon.io/apm/pricing/). We will notify you at least 30 days before the effective date of any price change that might affect the calculation of your fees and charges for use of the Service.

3.2 Invoicing and Payments. You agree to pay us the applicable fees and charges for Service usage by using a credit card or direct transfer to one of our bank accounts. All amounts payable by you under this agreement will be paid to us in full, without any deduction or withholding. In the case of choosing a credit card as payment method, you agree to provide us with valid and updated credit card information and you authorize us to charge such credit card for all fees and charges incurred on a monthly basis and until the termination of this Agreement. All invoiced fees and charges are due 15 days from the invoice date.

3.3 Prepaid Commitments. You may place an order for a specific capacity for usage of the Service and pay for it in advance. Once you place such order and the related payments have been received, your monthly fees and charges during the term of the order will only include fees and charges incurred in excess of the prepaid capacity. All fees and charges for prepaid commitment are non-refundable, with the exception of the termination provisions of Section 5.2 of this Agreement.

3.4 Overdue Charges and Suspension of Service. If any invoiced amount is not received by us by the due date, then without limiting our rights and remedies we may suspend your access to the Service until such amounts are paid in full. We will give you at least 10 days of prior notice that your account is overdue before proceeding to suspend your access to the Service.

3.5 Payment Disputes. We will not exercise our right under Section 3.4 of this Agreement if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

3.6 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.

4. Service Availability and Support

4.1 Service Availability. We shall use commercially reasonable efforts to make the Service available for access and use over the internet at least 99.5% of the time, measured monthly, excluding scheduled maintenance to the Service (“Base Availability”). You may request Service availability reports by contacting us through [email protected] If the Service does not satisfy the Base Availability for two consecutive months you may terminate this Agreement in accordance to Section 5.2 of this Agreement.

4.2 Support. We shall provide technical support with respect to your use of the Service. We are and will continue to be staffed with qualified support engineers who have experience with the Service and we will endeavor to provide timely and accurate answers to support requests that you might initiate. Although response time for support requests is not guaranteed, we shall do our best effort to reply to all support requests within 48 hours.

4.3 Defects. We shall endeavor to rectify Service errors that impact your use and operation of the Service. However, we do not warrant that the Service will be error free or will work in combination with third party software not provided by us.

5. Term

5.1 Term. The term of this agreement will commence on the Effective Date and will remain in effect until terminated under the provisions of Section 5.2 of this Agreement.

5.2 Termination. Either party may terminate this agreement by providing a notice of termination. Any notice of termination must include a cause of termination and an effective Termination Date that complies with the causes and notice periods expressed bellow and must be delivered in accordance to Section 14.6 of this Agreement.

5.2.1 Termination for Convenience. You may terminate this agreement for any reason by providing us with a notice of termination and closing of your account at least 30 days before the Termination Date. No refunds of any kind are applicable when terminating this Agreement for convenience.

5.2.2 Termination for Cause. Either party may terminate this agreement for cause if the other party is in material breach of the terms of this agreement and the material breach remains uncured for a period of 30 days from the receipt of the notice of breach by the other party. If you are terminating this Agreement due to our failure to comply with the terms of this Agreement (e.g. failing to perform the Service within the Base Availability expectations) we shall, within 30 days of the Termination Date, refund you a pro rata share of any prepaid commitment fees and charges that you paid and have a validity period extending beyond the Termination Date.

5.3 Effect of Termination. Upon the Termination Date (a) all your rights under this Agreement terminate immediately, (b) you remain responsible for all fees and charges you have incurred through the Termination Date, and (c) Sections 3, 8, 9, 10, 11 and 12 will continue to apply after termination of this agreement.

6. Privacy and Security

6.1 Use of Personal Data. We require use of Authorized Users’ personal data to provide and support the service. You shall ensure that all Authorized Users’ personal data is accurate and correct at all times. We shall use the Authorized Users’ personal data only in accordance to our Privacy Policy available at https://kamon.io/legal/privacy/.

6.2 Security. We make commercially reasonable technical, organizational, and physical measures designed to protect the confidentiality, security and integrity of your Data and secure it from accidental loss, unauthorized access, use, alteration and disclosure. When your Data is transmitted to and via the Service, we encrypt this data in transmission using SSL or other technologies. Please be aware, however, that no method of transmitting information over the Internet or storing information is completely secure. Accordingly, we cannot guarantee the absolute security of your Data.

7. Third Party Websites and Services

7.1 Third Party Integrations. Our Service may contain links and integrations to third-party web sites or services that are not owned or controlled by us. If you decide to enable third-party integrations with the Service you hereby grant us the right to interoperate with such third-parties for the sole purpose of delivering the functionality of the enabled integrations. We have no control over, and assume no responsibility for the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third-party web sites or services.

8. Proprietary Rights and Licenses

8.1 Reservation of Rights. We own all right, title, and interest in and to the Service, and all related technology and intellectual property. No rights are granted to you hereunder other than as expressly set forth herein.

8.2 License to Access and Use the Service. Subject to the terms of this agreement we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Service solely in accordance to this Agreement. This license is subject to the following restrictions:

8.3 License to Use Feedback. You grant to us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of our Service.

9. Confidentiality

9.1 Definition. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Service and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

9.2 Obligations. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any orders to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with Section 8 of this Agreement. Notwithstanding the foregoing, we may disclose the terms of this Agreement and any applicable order to a subcontractor or third-party service provider to the extent necessary to perform our obligations to you under this Agreement, under terms of confidentiality materially as protective as set forth herein.

9.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

10. Indemnity

10.1 Indemnification by Us. We will indemnify, defend and hold you harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees attributable to such claim that are awarded against you, only to the extent based upon a third party claim that the Service, as provided by under this Agreement and used within the scope of this Agreement, infringes any patent or any copyright or misappropriates any trade secret, provided that you: (i) promptly notify us in writing of the claim; (ii) grant us sole control of the defense and settlement of the claim; and (iii) provide us, at our expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.

10.2 Indemnification by You. You will indemnify, defend and hold us and our officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Service, or (ii) your Data, including but not limited to, the transmission and submission of such Data to the Service, and infringement or misappropriation of any third party proprietary rights by your Data, provided that we: (a) promptly notify you in writing of the claim; (b) grant you sole control of the defense and settlement of the claim; and (c) provide you, at your expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.

10.3 Exclusive Remedy. THE PROVISIONS OF THIS SECTION 10 SET FORTH OUR SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

11. Disclaimer

11.1 EXCEPT AS EXPLICITLY PROVIDED BY THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OR THE THIRD-PARTY CONTENT AND SERVICES, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

12. Limitation of Liability

12.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.2: (a) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (b) IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO US BY YOU UNDER UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

12.2 Limited Liability Exclusions. The exclusions and limitations in Section 12.1 shall not apply to a Party’s indemnification obligations under Section 10, losses arising out of a Party’s failure to comply with its confidentiality obligations under Section 9, or your payment obligations to us under this Agreement.

13. Changes to this Agreement

13.1 Our Right to Change this Agreement. We may, at our discretion, change this Agreement at any time. If the changed Agreement materially modifies your rights or obligations, we may require you to provide consent by accepting the changed Agreement, as applicable. If we require your acceptance of the changed Agreement, changes are effective only after your acceptance. If you do not accept the changed Agreement, we may terminate your access to and use of the Service.

13.2 Notice. We shall provide you with a notice of changes to this Agreement no less than 30 days before the effective date of such changes. Unless explicit consent is required as per Section 13.1 of this Agreement, by continuing to use the Service after the effective date of the changed Agreement you agree with the changed version of this Agreement.

14. Miscellaneous

14.1 Force Majeure. We will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

14.2 Governing Law. These Terms shall be governed and construed in accordance with the laws of the Republic of Croatia, without regard to its conflict of law provisions. Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights.

14.3 Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court, the remaining provisions of this Agreement will remain in effect.

14.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the Service, and supersede and replace any prior agreements that might have existed between the parties regarding the Service.

14.5 Language. All communications and notices made or given pursuant to this Agreement must be in the English language.

14.6 Delivery of Notices. All notices to us must be in writing and addressed to [email protected] All notices to you, including those regarding changes to this Agreement will be made by email, addressed to the email address associated with your User Account on the Service.