These Koople terms of service ("Agreement") contain the terms for the use of the Koople service and are between Odd Labs S.L. ("Koople"), a Barcelona (Spain) corporation and the party agreeing to the terms of this Agreement ("Customer"). By clicking on "accept" or similar button or otherwise downloading or using the Koople service, the person performing any of the foregoing represents that he/she is authorised to do so on behalf of Customer and Customer agrees to be bound by the terms of this Agreement. Customers may not use the Koople service without agreeing to this Agreement first. If a written agreement regarding customer's use of the Koople service exists between and has been executed by both Koople and customer, the terms of that written agreement shall take precedence over this Agreement.
Affiliate means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common control with such party.
Confidential Information has the meaning set forth in Section 8.
Control means ownership or control, directly or indirectly, of at least 50% of the voting interests of the subject entity.
Customer Data means all electronic data or information submitted by Customer or any of its Affiliates in the Koople Service.
Customer Equipment means Customer's and its Affiliates' computer hardware, software and network infrastructure used to access the Koople Service.
Data Protection Laws and Regulations means all EU/Swiss applicable legislation with respect to the processing of Personal Data, including but not limited to the EU Data Protection Directive (95/46/EC).
Documentation means the published specifications of the Koople Service, as may be updated or amended from time to time as necessary due to updates and enhancements, as determined and provided by Koople to Customer.
Effective Date means the date Customer first clicks an "accept" or similar button or otherwise downloading or using the Koople service or, if using a paper-based or online ordering document signed by Koople and Customer, the Effective Date stated on such document.
Extension Term means each renewal subscription period for which the subscription term applicable to an Order is extended according to Section 10.
Force Majeure Event means a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party from performing its obligations, and (ii) is beyond the reasonable control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against.
Initial Term means the first subscription term period for the Koople Service defined on an Order, or if no such term period is defined, twelve (12) months, commencing on the date Customer executes such Order.
Order means an online order submitted by Customer through Koople’s designated URL for the Koople Service, or a paper-based or online ordering document for the Koople Service signed by Koople and Customer.
Koople Service means the Koople online, cloud-based feature flag management tool as further described in the Documentation, including the Koople SDK.
Renewal Term means each renewal subscription period for which the subscription term applicable to an Order is extended pursuant to Section 10.
SDK means Koople's software development kit for use with Customer's products in accordance with the Documentation.
Subscription Fees mean the fees paid by Customer for the right to access and use the Koople Service and receive standard support during the Term.
Taxes means any direct or indirect local, state, federal or foreign value-added, sales, use or withholding taxes.
Term as it relates to an Order means the Initial Term and any Renewal Term applicable to each Order, and as it relates to this Agreement, is as defined in Section 10.1 below.
Users means Customer's and its Affiliates and their respective employees, agents, contractors, service providers or consultants who are authorised by Customer to use the Koople Service and who have been supplied user identifications and passwords by Customer or by Koople at Customer's or its Affiliates' request.
2. Terms of Koople Service
Koople shall make the Koople Service available to Customer and its Affiliates in accordance with this Agreement, and each Order, to the extent not in conflict with this Agreement or an Order or the Documentation. Subject to the terms of this Agreement, Koople grants Customer and its Affiliates a worldwide, fully-paid, royalty-free, limited-term, non-sublicensable, non-transferable (except as otherwise provided herein), and non-exclusive license to access, use, and download (for the SDK only) the Koople Service solely for its internal business purposes. The license granted hereunder is limited to the maximum number of Users specified in each Order and is subject to any additional terms and conditions specified on an Order. Licenses are provided for the number of Users set forth in the applicable Order Form and are only for named individual Users (“Named User”). Each Named User that wants access to the Koople Service must be assigned a separate User ID, which may not be shared by more than one individual or used by aliases and the like. Named User licenses may only be re-assigned when the individual corresponding to the Named User is generally not a User of the Koople Service. Any third-party component embedded, included or provided by Koople for use with the Koople Service may only be used in conjunction with the Koople Service, and such use is subject to this Agreement.
3. Customer Responsibilities Relating to Use of the Koople Service
Customer is responsible for obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the Koople Service.
Customer agrees to use the Koople Service in compliance with applicable law, and not: (a) resell, sublicense, lease, time-share or otherwise make the Koople Service available to any third party other than as contemplated or allowed by this Agreement; or (b) use the Koople Service to intentionally send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
Customer agrees to not (a) modify, copy or create derivative works of the Koople Service; (b) reverse engineer the Koople Service; (c) access the Koople Service for the purpose of building a competitive product or service; (d); use a Named User license with a person that it was not originally assigned to or otherwise use a Named User license in violation of Section 2; (e) do any "mirroring" or "framing" of any part of the Service, or create Internet links to the Service which include log-in information, user names, passwords, and/or secure cookies; (f) use the Koople Service, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Koople's prior written consent; or (g) provide access to the Koople Service by a known direct competitor of Koople.
In addition, Customer acknowledges that the SDK is subject to the MIT license (or successor version as indicated by Koople).
If customer fails to comply with the obligations set forth in this section 3 Koople shall inform customer thereof in writing and reserves the right to suspend the Koople service if the failure is not remedied within five (5) business days. Koople also reserves the right to throttle or suspend the service if Koople reasonably determines that customer is using the service in excess of the volumes intended by Koople or such use overloads the services as a whole.
As between the parties, Koople shall retain all ownership rights in the Koople Service, the technology, software, hardware, products, processes, algorithms, user interfaces and know-how related to the Koople Service and all work developed or created by Koople during the course of providing support or the Koople Service to Customer ("Work Product") in each to the extent not constituting Customer Information (as defined below). Customer shall have or retain all ownership rights in the Customer Data and all data, text, files, data, output, programs, files, information, or other information material that Customer or its Affiliates provides, develops, generates, creates, makes available or uses in conjunction with the Koople Service (collectively, "Customer Information'). As applicable, Koople hereby assigns and will assign all Customer Information to Customer. No license, right or interest in any Koople or Customer trademark, copyright, trade name or service mark is granted hereunder.
Koople shall own any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Koople Service.
Unless otherwise specified on an Order, the Fees (if any) shall be as stated in each Order and shall be payable in advance. In the event Customer is paying by credit card as indicated in an Order, Customer acknowledges that Koople uses a third-party for the processing of such payments and that Koople's credit card processor will have access to certain information provided by Customer as a result.
For payments made by credit card, Customer's credit card will be charged at the time the Order is placed and thereafter, at the frequency listed in the Order, which will continue until this Agreement is terminated. For all other payment methods, fees shall be due and payable within thirty (30) days of the date of the invoice. Any payment not received from Customer by the due date may result in suspension of Customer's ability to access the Koople Service until payment is made, provided that Koople notifies Customer in writing of the delinquency and such delinquency is not corrected within ten (10) business days.
Unless otherwise provided, Koople's fees do not include any Taxes, and Customer is responsible for paying all Taxes arising from its purchases hereunder, excluding Taxes based on Koople's net income, employees, or property. If Koople has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount of such Taxes shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
The license granted hereunder is limited to the maximum number of Users licensed (where applicable) and any additional metrics specified on an Order. In the event Customer exceeds such usage, Koople may charge Customer for such excess usage.
6. Representations and Warranties
Each party represents and warrants that it has all necessary right, title and authority to enter into and perform under this Agreement. Customer warrants that it has the rights to provide and use any and all Customer Data in accordance with the terms of the Agreement and the foregoing and its performance hereunder doesn't violate any laws. Customer represents and warrants that it is responsible for configuring the Koople Service, including but not limited to determining what Customer Data is collected, stored, used, displayed, and/or exported through the SDK (or any API) based on the private attributes or similar features in the Koople Service.
Except as expressly provided herein, neither party nor its licensors or suppliers makes any warranties of any kind, whether implied, statutory or otherwise, including any warranties of merchantability or fitness for a particular purpose. Koople does not warrant the operation of the Koople service will be uninterrupted or error-free.
7. Indemnification by Customer
Customer shall defend, indemnify and hold Koople and its Affiliates (collectively, "Koople Group") harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Koople any member of Koople Group, by a third party alleging that the Customer Data created and stored by Customer in the Koople Service or otherwise provided to Koople in connection with the Agreement (i) violates any applicable law or regulation; (ii) infringes any patent, copyright or other intellectual property rights of a third party; and/or (iii) arising out of Section 6.2. Koople agrees to (a) promptly give written notice of the Claim to Customer (provided that the obligations under this Section 7 shall not be reduced by the failure to give such notice except to the extent Customer is materially prejudiced by such failure); (b) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Koople of all liability and obligation); and (c) provide to Customer, at Customer's cost, all reasonable assistance.
As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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, including the terms and conditions of this Agreement, the Services, Customer Data, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any confidentiality obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any confidentiality obligation owed to Disclosing Party or access to or reliance on Disclosing Party's Confidential Information; or (iv) is received from a third party without breach of any confidentiality obligation owed to Disclosing Party.
Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except as allowed by the terms of this Agreement or with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). Koople represents and warrants that it will maintain the confidentiality of Customer Data and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the Koople Service and to otherwise improve the Koople Service. However, Koople may compile aggregate data related to Customer' s usage of the Koople Service and may use and/or disclose such aggregate data to third parties, to the extent that Customer is not identified as the source of such data and as long as the data does not reveal the identity, whether directly or indirectly, of any individual, or specific data entered by or relating to any individual. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with (a) prior written notice of such compelled disclosure (to the extent legally permitted) and (b) reasonable assistance in contesting the disclosure, at Disclosing Party's option and cost. Any actual disclosure shall be limited to the minimum amount of information necessary to comply with the disclosure demand as advised by legal counsel.
If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information and, upon request and to the extent practicable, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
Koople has in place reasonable security procedures in accordance with industry standards. Koople will provide the Koople Service in accordance with its standard security policy, disaster recovery plan, and resilience plan. Koople will also undergo a penetration test performed by a third-party at least twice a year. To the extent Customer Data comprises "personal data" within the meaning of applicable Data Protection Laws and Regulations, it is acknowledged that Koople is acting on behalf of Customer as Data Processor. As Data Processor, Koople shall: a) process Customer Data in accordance with this Agreement, Customer's instructions, and applicable Data Protection Laws and Regulations, b) take and maintain appropriate organizational, administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer Data, c) set up and maintain security measures against unauthorized access to or unauthorized alteration, disclosure, destruction or loss of Customer Data, d) not access Customer's User accounts, including Customer Data, except as to respond to service or technical problems or otherwise at Customer's request, and e) take reasonable steps to ensure that personnel used by Koople to provide the Koople Service are under strict confidentiality provisions and are aware of and are suitably trained in any such technical, organizational and security measures.
9. Limitation of Liability
Except for the parties' indemnification obligations (the "Exclusions"), in no event shall either party's aggregate liability arising out of this Agreement, whether in contract, tort or under any other theory of liability, exceed the fees paid or payable to Koople during the (12) twelve months prior to when the claim accrued. Each party’s liability for the exclusions shall not exceed five (5) times the fees paid or payable to Koople during the (12) twelve months prior to when the claim accrued.
To the maximum extent permitted by law, in no event shall either party or its licensors or suppliers have any liability to the other party for any lost profits or for any special, incidental, punitive, or consequential damages however caused and, whether in contract, tort or under any other theory of liability, whether or not the party has been advised of the possibility of such damages.
10. Term and Termination
This Agreement commences on the Effective Date and continues until all Orders entered into under this Agreement have expired or been terminated unless terminated as otherwise provided herein. The Initial Term applicable to each Order commences upon Customer's execution of such Order and upon expiration of the Initial Term, the Koople Service subscription term applicable to such Order shall continue to renew for Renewal Terms equal to the term of the most recent Term, unless either party gives notice to the other party of its desire to not renew at least thirty (30) days prior to the end of the then-current Term. Koople may modify the fees charged for any Renewal Term by providing Customer with at least twenty (20) days’ advance notice prior to the date of renewal (and for clarity, prior to the start of a month, for a month to month subscriptions).
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided herein. Koople may terminate this Agreement immediately in the event Customer’s credit card is rejected by Koople’s credit card processor.
The parties' rights and obligations under Sections 4, 5, 6.3, 7-19, 10.3, and 11 shall survive termination of this Agreement.
Upon the effective date of termination of this Agreement Customer's license to use the Koople Service will cease. After such 30 day period, Koople will have no obligation to maintain any Customer Data.
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
Notices shall be in writing and delivered by nationally recognized overnight delivery service or certified or registered U.S. Mail, and are effective upon receipt. Customer’s address shall be the address on file with Koople and Koople’s address shall be the address first listed above. Koople may provide notice of any fee increase by e-mail to Customer or by notifying Customer by the Koople Service portal interface or similar mechanisms.
To the extent of any conflict between this Agreement and any other Exhibit or document referenced herein, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or similar ordering document (other than a Statement of Work or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
Either party may include the other's name or logo in customer or vendor lists in accordance with the other's standard guidelines. In addition, Koople may refer to Customer's intended use of the Koople Service in its marketing materials and on its websites as well as in discussions with Koople customers, prospective customers, and industry and financial analysts. If you wish not to be included in public material, contact Koople in order to opt-out.
No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, actions or decrees of governmental bodies or communications failure which (i) hinders, delays or prevents a party in performing any of its obligations, (ii) is beyond the control of, and without the fault or negligence of, such party, or (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against ("Force Majeure Event"). Koople may change this Agreement from time to time by posting the changes to this Agreement on this webpage and will indicate at the top of this page the date these terms were last revised. Koople will also notify Customer of material changes, either through the Koople Service user interface, in an email notification, or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Koople Service or changes made for legal reasons will be effective immediately. Customer’s continued use of the Koople Service after the date any such changes become effective constitutes Customer’s acceptance of the new Agreement.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (i) either party may assign this Agreement in its entirety (including all Orders hereunder), upon written notice to the other party, to an Affiliate or, to its successor in interest resulting from a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party and (ii) Koople may use subcontractors in the ordinary course of business. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (i) either party may assign this Agreement in its entirety (including all Order Forms hereunder), upon written notice to the other party, to an Affiliate or, to its successor in interest resulting from a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party and (ii) Koople may use subcontractors in the ordinary course of business. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.