KUDO Terms & Conditions of Service

These Terms and Conditions of Service (“Agreement“), are entered into by and between KUDO Inc., a Delaware corporation, having principal offices at 224 W 35th Street, Suite 500 #781, New York, NY 10001, United States (“Provider“) and the Customer (the “Customer“) as identified in the Signature Section of this Agreement. Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”  

This Agreement will be effective as of date of signature or as otherwise specified in an Order or as agreed upon by the Parties (the “Effective Date“) and shall apply to all present and future Customer Orders accepted by Provider until otherwise terminated in accordance with this Agreement. Provider’s acceptance of any Order by Customer is expressly conditioned on Customer’s acceptance of this Agreement. 

WHEREAS, Customer desires to access Provider’s software-as-a-service offering, as well as certain documentation, and/or professional services such as training, interpretation, operational and/or technical services in connection with this service offering (together the “Services”), subject to the terms and conditions of this Agreement;  

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the Parties agree as follows:  

1. Ordering Information

1.1. Order. The description of Services and Fees agreed upon by the Parties may be presented in a signed Subscription Agreement, in a signed Quotation, or in any offer presented by Provider and formally signed by Customer. Any such signed document, accepted by Provider, may be referred to as an “Order”, and shall be subject to the terms and conditions of this Agreement unless otherwise stated in the Order.

1.2. Statement of Work. An Order may be complemented by a statement of work (“SOW”) further describing the specific Services to be delivered by Provider to Customer as well as setting mutual expectations between the Parties. As a limited illustration, a SOW may present the schedule for the provision of Services for a specific Event/Meeting (“Meeting”), the selection of Meeting languages, or the role of operators on the Meeting. When not formalized in a separate document, a SOW may be documented in clear written communications between the Parties, including via email, with unequivocal indication of assent on each term by each Party. 

1.3. Fees. Customer shall pay all fees specified in each Order and any applicable additional fees if Customer exceeds any limits specified in the Order (collectively, “Fees”). Except as otherwise specified herein or in an Order or SOW: (i) Fees are payable in United States dollars; and (ii) Fees paid are non-refundable. 

1.4. Payment. Customer shall make all payments for Fees hereunder by the due date set forth in Provider’s invoice. Except as otherwise agreed upon by the Parties: (i) all Orders are on prepaid terms; (ii) invoiced amounts are due upon receipt; (iii) Fees for annual Subscription Agreements will be invoiced annually in advance; and (iv) Fees for uses exceeding any limits specified in the Order (“Overage”) will be invoiced in arrears. All amounts payable under this Agreement will be made without offset or deduction. Provider may accept any partial payment without prejudice to its right to recover any remaining balance.  

Should Customer fail to make any payment when due, without prejudice to any other rights and remedies available to Provider, then: (a) Provider may charge interest on the past due amount at a rate equal to the lesser of 2.00% per month or the maximum rate permitted by applicable law; (b) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest; (c) if such failure continues for thirty (30) days or more, Provider may suspend Customer’s access to any portion or all of the Services until such amounts are paid in full. 

1.5. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of sales taxes, value added taxes, and other similar taxes and duties imposed by any public authority on the sale, import, or use of Provider’s Services to Customer. Customer is responsible for payment of all such taxes as may be applicable. 

1.6. Overage Fees. Overage Fees will be incurred and due for any usage of the Services by Customer beyond the agreed upon limits set forth in the Order or SOW, including, as an example and without limitation, platform usage (e.g. KUDO Meeting, Language Access, etc.) beyond the agreed upon time limits. Overage Fees will be invoiced at a rate equal to the rate quoted in the original applicable Quote or SOW. 

1.7. Support and Interpretation Credits. A Customer may purchase additional interpretation credits or support credits during the subscription period, and such credits may be used until the end of the subscription period. At the end of the subscription period, unused credits will be lost, unless the Customer renews its subscription, in which case credits will be rolled over into the new subscription as set forth in Section 1.9. 

Except as otherwise agreed upon by the Parties:  (i) overtime for Support Credits including a labor component will be due for the full hour for any labor performed beyond a 10-minute grace period after the originally agreed upon and scheduled time limit, and will be deducted in hourly increments from the Customer’s balance at the rate of one credit per hour, while interpretation credits are deducted in hourly increments at the rate of one credit per hour per language; and (ii) Except as otherwise agreed upon by the Parties:  (i) overtime for Support Credits including a labor component will be due for the full hour for any labor performed beyond a 10-minute grace period after the originally agreed upon and scheduled time limit, and will be deducted in hourly increments from the Customer’s balance at the rate of one credit per hour, while interpretation credits are deducted in hourly increments at the rate of one credit per hour per language; and (ii) overtime for Services that do not include labor (such as platform time) will be counted per minutes and applied towards the total hours purchased by Customer. 

1.8. Renewal of Subscription Services. Except as otherwise specified in the applicable Order, any annual Subscription shall renew for successive one-year periods, upon mutual agreement of the Parties. Provider may modify pricing applicable to the renewal of a Subscription Agreement by providing Customer with notice thereof, unless prepaid via a multi-year contract wherein the pricing will be honored for those contracted products and services. 

1.9. Upgrade, Downgrade, Cancellation or Rollover of Subscription Services. Customer can upgrade a Subscription Agreement at any time. If Customer wishes for an upgrade to take effect immediately, a new subscription term will start as of the date of the upgrade and Provider will charge Customer the corresponding Fees as of such date. There will be no refund for cancellation or downgrades during the contract period (annual or multi-year) and unused subscription time will be lost upon the termination of the subscription. However, in the event of a renewal of subscription services at the same package level or higher, Provider will allow rollover time from the prior subscription to be used within the new subscription term. 

1.10. Cancellation of an Order or SOW for a Meeting Including Professional Services. The term “Professional Services” or “Support Credit” may include, but is not limited to training, conference interpreter, project management, advance engineering, operational and/or technical support. Provider shall be entitled to compensation, not to exceed the Order amount or the portion of the Order amount applicable to the SOW being cancelled (either one referred to as “Contractual Value” in this paragraph), for any losses that Provider may sustain for having prepared a specific Meeting and scheduled Professional Services on Customer’s behalf. In this case, except as otherwise agreed upon by the Parties, the cancellation Fees will be calculated as follows:  (i) 100% of the

Contractual Value for any cancellation communicated within 24 hours of the start of the Meeting, without any refund or credit; (ii) 50% of the Contractual Value for any cancellation communicated between 3 days and 1 day of the start of the Meeting (unless all authorized non-refundable costs incurred by Provider are higher in which case Provider shall be able to recover all such costs as cancellation Fees). For any cancellation communicated prior to 3 days, Provider will charge Customer a cancellation Fee equal to all authorized non-refundable costs incurred by Provider in planning and cancelling the Order or SOW.  

For purposes of this Section 1.10, Professional Services scheduled over sequential days are to be treated as a single Meeting. Cancellation Fees will be due and payable upon cancellation.  

Payments made before the date of cancellation are not refundable. Provider may however give Customer a refund or a credit towards a future Order.  

1.11. Order Cancellation. For circumstances other than presented in Section 1.9 or 1.10, either Party may at any time, and upon written notice to the other Party, cancel and/or terminate any or all Orders placed under this Agreement, except with respect to Services which have already been performed. Aside from the specific provisions presented in Sections 1.8, 1.9 and 11.3 Provider does not commit to offering any refund or credit upon cancellation or termination of any Order.  

2. Access and Use

2.1. Provision of Access. Subject to compliance with all the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive right to access and use the Services as described in the Order and any applicable SOW. Provider shall provide to Customer the necessary credentials and network links or connections to allow Customer to access and use the Services. 

2.2. Authorized Users. Customer may grant authorization to employees, contractors, and guests (“Authorized Users”) to access and use the Services under the rights granted to Customer pursuant to this Agreement. The total number of Authorized Users will not exceed the number set forth in the Order or SOW, except as expressly agreed to in writing by the Parties and subject to the payment of applicable Overage Fees. Customer is responsible for ensuring that any of Customer’s obligations under this Agreement performed by Authorized Users are carried out in accordance with this Agreement and applicable law (including applicable data protection and privacy laws). 

2.3. Access Beyond Contractual Usage Limits. Customer is responsible to track its usage of the Services based on the usage report supplied by Provider. Otherwise, except as otherwise agreed upon by the Parties, Provider makes no commitment for the availability of the Services beyond the agreed upon usage limits, including, for example, the capacity of the platform to support a larger attendee count or the availability of the hired labor to work overtime.  

2.4. Updates to the Services. During the term of the applicable Order (“Order Term”), Provider may update or modify the systems, platform environment, documentation, or other supporting materials used to provide the Services to reflect changes in technology, regulations, industry practices or patterns of system use, so long as Provider does not materially reduce the level of performance, functionality, or security of the Services and continues meeting its responsibilities hereunder. New functionality to the Services may be marketed separately by Provider and may require the payment of additional fees. 

2.5. Scheduled Downtime. From time to time, Provider may need to schedule necessary maintenance and updates leading to a downtime in Services. Provider will give at least 48-hour advance notice to Customer of the published maintenance window. Provider guarantees scheduled downtime to be less than 12 hours per year.  

2.6. Restrictive Country Regulations. Provider is using multiple data centers to ensure high availability and optimal performance, regardless of users’ location. However, some governments have historically blocked foreign company’s data access, or 2.6. Restrictive Country Regulations. Provider is using multiple data centers to ensure high availability and optimal performance, regardless of users’ location. However, some governments have historically blocked foreign company’s data access, or temporarily disrupt or delay data flow, DNS, or proxies. Provider’s commitment to make the Services available to Customer may not or not always cover participants or interpreters using Provider’s Services inside or trying to connect to countries that restrict cross-border data flow. 

2.7. Suspension or Termination. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services, and Provider may terminate an Order or this Agreement and all open Orders placed under it, if Provider reasonably determines that: (i) Customer or any Authorized User is using the Provider IP or Services for fraudulent or illegal activities in breach of this Agreement; (ii) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (ii) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any bankruptcy, liquidation, dissolution, or similar proceeding; or (iii) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (iv) any vendor of Provider has suspended or terminated Provider’s access to or use of any Third-Party Products required to enable Customer to access the Services; or (v) Provider is unable to provide Services for causes as described in Section 4.5.  

2.8. Third-Party Products. A series of third-party products or services (“Third-Party Products”) is needed to run Provider’s platform. Customer agrees to Provider’s use of Third-Party Products.  

2.9. Delegation. Provider may employ third party contractors (“Authorized Contractors”) or employees from Affiliate companies of Provider to perform certain aspects of the Services provided that Provider remains fully liable for the same and responsible for ensuring that any of Provider’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement. 2.9. Delegation. Provider may employ third party contractors (“Authorized Contractors”) or employees from Affiliate companies of Provider to perform certain aspects of the Services provided that Provider remains fully liable for the same and responsible for ensuring that any of Provider’s obligations under this Agreement performed by its Affiliates and its Authorized Contractors are carried out in accordance with this Agreement. Affiliates are companies under common control with Provider. 

3. Customer Responsibilities

3.1. General. Customer shall access and use the Services in accordance with this Agreement, applicable laws and government regulations (including applicable data protection and privacy laws). Customer shall use commercially reasonable efforts to prevent unauthorized access or use of the Services and notify Provider promptly of any such unauthorized access or use.  Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement.  

3.2. Technical Guidelines and Best Practices. Customer is responsible to follow all guidelines delivered by Provider for optimum use of the Services.  Customer must take care to ensure that Authorized Users are aware of the minimum technical requirements to access and use the Services, including the required browsers in their latest version; and particularly that active users required to speak in a Meeting would be located in an environment with proper acoustic conditions, have the required Internet connectivity, computers, headsets, microphones, webcams, and other devices. 

Customer shall endeavor to ensure that all interpreters, operators and all support labor assigned by Customer to a Meeting held on Provider’s platform have the appropriate training, skills and competence to undertake such assignment. Provider is available to deliver training, assistance, and onboarding upon demand from Customer.   

3.3. Due Diligence. Customer is responsible to conduct its own due diligence to confirm Provider’s capability to comply with Customer’s data security requirement, and any other internal policies and procedures that it may have in place. Customer should rely exclusively 3.3. Due Diligence. Customer is responsible to conduct its own due diligence to confirm Provider’s capability to comply with Customer’s data security requirement, and any other internal policies and procedures that it may have in place. Customer should rely exclusively on its own diligence and sources of information. Although Provider believes the information available in its documentation to be accurate, it is understood that Customer shall be solely responsible for any reliance it places on information received from Provider. 

3.4. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, except as expressly authorized in writing by Provider and under Provider’s supervision: (i) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services; (ii) remove any proprietary notices from the Services including from Provider’s documentation; (iii) use or permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services; (iv) disclose any benchmark or performance tests of the Services; (v) transmit in any manner data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, or personal information; or (vi) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or that violates any applicable law. 

4. Service Agreement

4.1. Commitment. Subject to the terms and conditions of this Agreement, Provider shall endeavor all commercially reasonable efforts to make the Services available in accordance with the Services agreed upon in the Order and SOW. Provider operates using multiple secure data centers to ensure redundancy and failover in order to achieve this availability commitment. Professional Services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards. 

4.2. Service Credit. In case Provider cannot maintain its platform’s availability Commitment and Customer experiences a prolonged downtime, or in case Customer has hired professional Services through Provider and the hired labor did not show up for the Meeting, Provider will apply a prorated credit to the amount that was paid for the affected Meeting. Service Credits are not refunds, cannot be exchanged into a cash amount, require Customer to have paid any outstanding invoices and expire upon termination of this Agreement which equates to a termination of the Customer account. 

To apply for a Service Credit, Customer must contact Provider within fifteen (15) days of the date on which the prolonged downtime occurred with mention of the dates and times of the unavailability for which the Service Credit is requested and any documents, screenshots, or communication pertinent to the event. 

4.3. Sole Remedy. Customer’s right to receive Service Credits shall be the sole and exclusive remedy for any prolonged downtime or non-performance of Provider or other failure by Provider to achieve the agreed upon Commitment. Provider shall have no liability for any damage, liabilities, losses, or any other consequences that Customer or any Authorized User may incur as a result of a service suspension, downtime or non-performance. 

4.4. Exclusions. Any unavailability, suspension or termination of Provider’s Services, or any other performance issues, that (i) are caused by factors outside of Provider’s immediate and reasonable control, including, without limitation, any force majeure event, carrier-related problems or issues, or Internet access or related problems beyond the demarcation point of Provider or its direct hosting subcontractors; (ii) result from any action or inaction of Customer or from equipment, software or other technology run on Customer’s premises; (iii) arise from Provider’s suspension and termination of Customer’s right to use the Services in accordance with this Agreement; or (iv) originate from restrictive

country regulations affecting cross-border data flow; or (v) result from Scheduled Downtime. 

4.5. Invalidation. Notwithstanding anything to the contrary, this Service Agreement shall be deemed null and void in the event that Customer intentionally interferes with Provider’s ability to mitigate downtime in order to achieve the availability Commitment. By way of example, such interference may include, but is not limited to, circumventing Provider’s security protocols, restricting Provider’s ability to enforce load balancing or failover between data centers, or programming internal firewalls to reject data transfers from specific data centers. In any such case, Customer shall be ineligible to receive a Service Credit regardless of the cause of the unavailability that would otherwise give rise to such Service Credit. 

5. Interpretation

5.1. Professional Performance Guidelines. Customer shall endeavor to ensure that all interpreters assigned by Customer to a Meeting held on Provider’s platform have the appropriate training, skills and competence to undertake such assignment. Customer shall further endeavor to comply with all technical guidelines and best practices shared by Provider that would impact an interpreter’s working conditions and performance including providing interpreters with a comfortable working environment with proper acoustic conditions, and with the recommended technical tools, suitable for the professional services that are required of them.  

If possible, Customer shall allow interpreters to familiarize themselves with the content and key points of the Meeting ahead of time, including by sharing presentation notes or Meeting documents.  

5.2. Disclaimer for Interpretation, Closed Captioning and Transcription. The simultaneous interpretation of a Meeting serves to facilitate communication and does not constitute an authentic or verbatim record of the proceedings. Provider does not review for accuracy any information that appears in a closed caption, machine-enabled interpretation or transcript. Only the original speech is authentic.

5.3. Broadcasting, Streaming and Recordings. At its discretion, Customer may elect to broadcast, stream or record any Meeting held on Provider’s platform including an interpreter’s audio. Recording shall be kept in the Provider’s cloud for 30 days and then deleted. Customer can download the recording during this time. Interpreters hired by Customer shall be made aware of the possibility of such broadcasting, streaming or recording and Customer shall be responsible to obtain the consent of participants (including any interpreters not provided by Provider) for such broadcasting, streaming or recording, if required by applicable law. To the extent possible, Customer shall give interpreters a chance to review and correct any recordings prior to their public disclosure. Except as otherwise communicated by Provider, all interpreters hired through Provider for a Customer’s Meeting will have agreed to such broadcasting or recording of their audio and waived all property rights over such audio broadcasting or recording.  In some situations, Provider may request consent from participants for Provider’s recording of Meetings and/or use of Customer’s recording solely for purposes of analysis to improve Provider’s products and services (pursuant to Provider’s privacy policy). Customer may request that Provider refrain from doing so.  

6. Mutual Confidentiality Agreement

6.1. Confidential Information. From time to time during the Term of this Agreement, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, personal data, the terms of this Agreement, any Order and SOW, third-party confidential information, and other sensitive or proprietary information that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure, whether orally, in written, electronic, or other form or media, whether or not marked or otherwise identified as “confidential” (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.  

6.2. Non-Disclosure. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, Affiliates’ employees, or Authorized Contractors who have a need to know the Confidential Information to exercise their rights or perform their obligations hereunder and who have a duty or obligation of confidentiality no less stringent than that set forth herein. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or if legally obliged to do so, provided that the Party making the disclosure shall first have given written notice to the other Party and made a reasonable effort to allow the other Party to obtain a protective order or other appropriate relief; or (ii) to establish a Party’s rights under this Agreement.  

Following the expiration or termination of this Agreement, upon request by the disclosing Party, the receiving Party will return or destroy all Confidential Information (including copies) that the disclosing Party made available to the receiving Party under this Agreement. The receiving Party may retain one copy of the Confidential Information for its files, but only to the extent required to ensure compliance with law and its bona fide corporate governance, insurance or audit obligations. Each Party’s obligations of non-disclosure with regard to Confidential Information shall survive the termination of this Agreement for as long as the information disclosed during the Term of this Agreement remains confidential, as defined herein.  

7. Security and Data Privacy

7.1. Customer Data. “Customer Data” shall mean all data, records, files, images, graphics, audio, video, photographs, documents, reports, forms, chat logs, participants’ votes, meeting subject and participants, transcripts and other content and material, in any format, that are submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or an Authorized User through Customer’s use of the Services. Customer Data includes personal data which refers to any information relating to an identified or identifiable person such as a name, voice, images, an identification number, location data, an online identifier, this person’s cultural or social identity, or other personal information (“Personal Data”). 

Customer represents and warrants that it has the right to provide the Customer Data to Provider and that such use does not violate or infringe on any rights of any third party. Under no circumstances will Provider be liable in any way for any (a) Customer Data that is transmitted or viewed while using the Services, (b) errors or omissions in Customer Data, or (c) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Customer Data. 

7.2. Data Privacy. Where Customer’s use of the Services includes the processing of Personal Data by Provider as a data processor subject to the General Data Protection Regulation (EU) 2016/679 (“GDPR”), Provider processes such Personal Data at the direction of Customer as data controller, and Provider endeavors to comply with the requirements of the aforementioned regulation. When Customer or any Authorized User provides to Provider Personal Data in connection with their use of the Services and Provider’s platform, Provider is acting in its capacity as a data processer as that term is defined under the GDPR; provided, however, that, as set forth elsewhere herein, Provider may in some situations (with separate consent from participants where required) act as a data controller in the analysis of Platform usage data for improvement of Provider’s products and services (“KUDO Controller Situations”)

pursuant to Provider’s privacy policy.  With the exception of KUDO Controller Situations, Customer acknowledges and agrees that it, and not Provider, is the data controller (as defined under the GDPR) of that Personal Data and Customer will be solely responsible to any data subject (as defined in the GDPR) requests received by either Party in connection with Customer’s and Authorized User’s use of the Services and Provider’s platform.  With the exception of KUDO Controller Situations, any requests Provider receives directly from an Authorized User regarding exercise of rights under GDPR or any analogous data protection statute under applicable law will be re-directed to Customer for response.  If Customer wishes Provider to take action in response to a request under GDPR concerning Personal Data, Customer shall contact Provider at Privacy@kudoway.com. Further details for Provider acting as processor for Customer are set out in the data processing addendum (if applicable) between the Parties which, together with the EU Standard Contractual Clauses (if applicable), is incorporated by reference into this Agreement. In case of inconsistency of the terms of this Agreement with the data processing agreement, the data processing agreement prevails. Customer’s entering into this Agreement shall be treated as signing the data processing addendum and the EU Standard Contractual Clauses and their appendices, if applicable.   

7.3. Compliance with Law. Provider will comply with all laws applicable to the provision of the Services, including applicable security breach notification laws. Customer is responsible for its legal and regulatory compliance in its use of any Services and shall make Provider aware of any Customer Data processed, stored or transmitted through the Services for which any specific legal requirements or regulations apply. 

7.4. Aggregated Statistics. Provider may collect and compile audio and text-generated data generated by Customer’s use of the Services, including Recordings (“Aggregated Statistics”). Such data is de-identified, maintained and used by Provider only in an aggregate manner  to improve Provider’s products and services. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, including all intellectual property rights therein, belong to and are retained solely by Provider. Customer agrees that Provider may use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer, any participant, or Customer’s Confidential Information; and further provided, for clarity, that any processing of Personal Data for deidentification and anonymization purposes by Provider shall result in a KUDO Controller Situation as to such processing.  

8. Intellectual Property

8.1. Provider IP. Customer acknowledges that Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP including the Services, documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing (“Provider IP”). Provider IP includes Aggregated Statistics. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary notices of Provider. 

As regards to Third-Party Products, the applicable third-party providers are the owners of all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. 

8.2. Customer Data IP. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data (other than Aggregated Statistics), that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through Customer’s use of the Services, to the extent permitted  by applicable law. 

Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license during the Term of this Agreement and for a period of one (1) year thereafter, to reproduce, distribute, and otherwise use, transmit and display the Customer Data and perform all acts

with respect to the Customer Data limited to (a) what may be necessary for Provider to provide the Services to Customer and (b) for KUDO Controller Situations, where applicable, for analysis for purposes of improvement of Provider’s products and services. To the extent necessary, Customer also hereby grants to Provider a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to compile and analyze any Customer Data incorporated within the Aggregated Statistics. 

8.3. Feedback. If Customer or any of its employees or Authorized Users makes comments, suggestions or recommendations for changes to the Provider IP (“Feedback”), including without limitation, new features or functionality, Provider is free to use such Feedback at its discretion, without any attribution or compensation to Customer or any party. Although Provider is not required to use any Feedback. 

8.4. Provider Indemnification for IP Violations. Provider shall indemnify Customer, within reason, from and against any well-founded third-party claim, suit, action, or proceeding (“Third-Party Claim“) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider, at Provider’s sole discretion, the option to be sole authority to control the defense and settlement of such claim, provided that Provider may not settle any claim against Customer unless the settlement unconditionally releases Customer of all liability. Customer shall have the right, at its own expense, to be represented in any such suit, proceeding, claim or demand by independent counsel of its own choosing.  

If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (a) modify or replace the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate

Customer’s Order, in its entirety or with respect to the affected Services, and refund to Customer any prepaid Fees covering the remainder of the Order Term.  

These provisions will not apply to the extent that the alleged infringement arises from: (i) use of Services by Customer in combination with equipment or software not supplied by Provider, where the Services itself would not be infringing; (ii) Customer’s breach of this Agreement; (iii) Customer Data; or (iv) Third-Party Products.   

8.5. Customer Indemnification for IP Violations. Customer shall indemnify Provider, within reason, from and against any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Provider promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer, at Customer’s sole discretion,  the option to be sole authority to control the defense and settlement of such claim, provided that Customer may not settle any claim against Provider unless the settlement unconditionally releases Provider of all liability. Provider shall have the right, at its own expense, to be represented in any such suit, proceeding, claim or demand by independent counsel of its own choosing.  

8.6. Exclusive Remedy for IP Violations. This Section 8 states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against the other Party for any type of claim described in this Section.

9. Customer Warranties, Provider Warranty Disclaimer and Limitation of Liability

9.1. Customer Warranties. Customer warrants and represents that: (i) its signatory below has the power and authority to enter into this Agreement on behalf of Customer and to bind Customer to this Agreement; (ii) Customer is not a party to any restrictions, agreements or understandings whatsoever

which would prevent or make unlawful Customer’s acceptance of the terms set forth in this Agreement or Customer’s performance hereunder; and (iii) Customer’s acceptance of the terms of this Agreement and the performance of Customer’s obligations hereunder do not and will not (with the passage of time) conflict with or constitute a breach or default of any contract, agreement or understanding, oral or written, to which Customer is a party or by which Customer is bound. 

9.2. Provider Disclaimer of Warranties. Except as expressly provided herein, the Provider IP and Services are provided “as is” and Provider hereby disclaims all warranties, whether express, implied, statutory, or otherwise. This is particularly relevant due to the relative novelty of Provider’s Services and trade practices for this developing industry. To the maximum extent permitted by applicable law, Provider specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and all warranties arising from course of dealing and usage of trade.  

Provider makes no warranty that the results of the use of the Services, will meet Customer’s or any other person’s requirements, achieve any intended result, or be compatible or work with any equipment, software or other services. 

Provider makes no warranty that the Services will operate without interruption,  

Provider makes no warranty that the Services will be secure from hacks or other forms of security breach, that the code or materials used in connection with the services is error free, or free of viruses, trojan horses, worms, or any other form of harmful code.   

Provider does not control what materials are uploaded by Customer or Authorized Users who use the Services.  Accordingly, Provider cannot warrant that such uploaded materials are free of viruses, trojan horses, worms, or any other forms of harmful code.  Additionally, Provider cannot warrant that any uploaded materials were done so lawfully in accordance with US and international copyright laws, or other laws relating to author’s rights.

Customer should rely exclusively on its own due diligence and assume all responsibility for determining whether the Services, including the documentation generated thereby is accurate or sufficient for Customer’s purposes. 

9.3. Limitation of Liability. To the maximum extent permitted under applicable law, neither Party shall have any liability to the other Party for any lost profits or revenues, replacement cost, or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the Party has been advised of the possibility of such damages.  

In no event will Provider’s aggregate liability arising out of or related to this Agreement, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amount paid or payable by Customer for the Services giving rise to such claim under the applicable Order in the 12 months preceding the applicable incident.

10. Term and Termination

10.1 Term. The Term of this Agreement begins on the Effective Date as set forth above and will continue until terminated pursuant to this Agreement’s express provisions. The termination or cancellation of an Order does not result in the termination of this Agreement. 

10.2. Termination. In addition to any other express termination rights set forth in this Agreement, either Party may terminate this Agreement: (i) For convenience, effective thirty (30) days following written notice to the other Party, as long as all Orders placed under this Agreement would have first been completed or otherwise terminated (ii) For cause, effective on the date of notice to the other Party, if: a) the other Party breaches this Agreement, and such breach is incapable of cure or, being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or b) the other Party has made an assignment for the benefit of creditors, or become the subject

of any bankruptcy, liquidation, dissolution, or similar proceeding.  

10.3. Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Services and Provider’s IP, and all open Orders placed under this Agreement will be terminated with immediate effect. Upon termination for cause by Customer and upon Customer’s written request, Provider shall refund, on a pro rata basis, any Fees paid thereunder that cover the remainder of any applicable Order Term after the effective date of termination of each and all such Orders individually. Upon termination for cause by Provider, without limiting Customer’s obligations hereby, all amounts owed by Customer thereunder shall become due and payable.   

10.4. Survival. The following sections of this Agreement shall survive the completion, cancellation or termination of any individual Order placed under it:  

Section 6 (Mutual Confidentiality Agreement), 7 (Security and Data Privacy), 8 (Intellectual Property), 9.3 (Limitation of Liability), 11 (General Provisions) and any other rights and obligations of the Parties hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination of this Agreement. 

11. General Provisions

11.1. Entire Agreement/Counterparts. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, and any other documents incorporated herein by reference, the terms of this Agreement shall prevail.  This agreement may be signed in more than one counterparts, all of which shall constitute together the same document.  Counterparts may be signed and delivered electronically in PDF format, each of which shall be binding when sent. 

11.2. Notices. All notices, requests, claims, waivers, and other communications hereunder (each, a “Notice”) must be in writing. Emails are an acceptable form of written communication.  

11.3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if such failure or delay is caused by circumstances beyond such Party’s reasonable control, including but not limited to: acts of God, pandemic, electrical power outage, riot or other civil unrest, labor stoppages, or government legislation. Both Parties shall use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, then either Party may terminate affected Orders in accordance with Section 10.  

11.4. Amendment and Modification; No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. 

11.5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.   

11.6. Severability. If any provision of this Agreement is found to be invalid, illegal, or unenforceable in any jurisdiction, it shall not affect the enforceability of any other provision of this Agreement. Rather, the invalid, illegal, or unenforceable provision shall be modified and interpreted in good faith so as best to accomplish the objectives of the original provision to the fullest extent permitted by law.  

11.7. Assignment. Neither Party may assign this Agreement or any right under this Agreement without the consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement in its entirety without consent of the other Party, in connection with a merger, acquisition,

corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. .  

11.8. Anti-Corruption. The Parties shall comply with all applicable laws and regulations relating to anti-bribery and anti-corruption. Provider and Customer agree that they have not improperly given, offered, received, or agreed to accept any payment, gift, or other advantage which violates anti-corruption laws. If a Party learns of any violation of the above restriction, such Party will use reasonable efforts to promptly notify the other Party. 

11.9. Trade complier policy obligations. Each Party undertakes to comply with applicable trade policies, export / import control and sanctions laws. Each Party represents that it is not named on any U.S. government denied-party list. Sanctions screening review implies the obligation of the Customer to screen and monitor its Authorized Users to identify if they are match to the restricted individuals or parties, proscribed countries, or prohibited purposes, as well as to screen and monitor parties with whom it engages (e.g., company names and country locations of suppliers, sub-contractors, employees, etc.). Customer is solely responsible for screening and monitoring his activity in the context of complying with such trade-related obligations. Customer shall indemnify and hold Provider harmless from all fines or damages imposed on Provider due to Customer’s failure to comply with this Section. 

11.10. Publicity. Provider may use Customer name or logo to identify Customer as a customer. Use of Customer’s name and logo will be revocable at any time by Customer. 

11.11. Governing Law. This Agreement is governed by, and construed in accordance with, the internal laws of the State of New York, United States without giving effect to any conflict of law provision. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.  

11.12. Choice of Forum. The Parties shall use their best efforts to amicably settle any dispute, controversy, or claim arising out of their relationship under this Agreement, including through alternative dispute resolution procedures as may be agreed to by the Parties. If no amicable settlement is possible, any civil action or legal proceeding arising out of or in connection with this Agreement shall be brought to the exclusive jurisdiction and venue of the state and federal courts in New York County, NY, United States, each Party irrevocably submits to the exclusive jurisdiction of these courts, except for the exception provided below, and agrees that venue in New York County is both proper and convenient. 

If Customer is a non-US Government entity or international organization that has privileges or immunities from suits in U.S. courts, then at Customer’s choice, Provider consents that any dispute or difference arising out of or in connection with this Agreement shall be arbitrated by the ICC International Court of Arbitration in New York City, the number of arbitrators shall be one, and English shall be the language for arbitral proceedings. 

Contact Information

If you have any questions or comments about these Terms and Conditions of Service as outlined above, you can contact us at:

KUDO Inc.
224 West 35^th Street, Suite 500 #781
New York, NY 10001
U.S.A.
kudo.ai
legal@kudo.ai

Last Updated: October 30, 2024