© 2024 ScaleKit Inc. All rights reserved
This Customer Agreement (“Agreement”) describes the terms under which ScaleKit, Inc. (“Scalekit”, “We”, “Our” “Us”) provides a subscriber (“You”, “Your” or “Yourself”) access to and use of the Platform. By accessing and/or using the Platform,
If You do not agree to this Agreement, You should immediately cease using our Platform.
You and Us will be individually referred to as “Party” and collectively as “Parties”.
1.1 Subject to Your compliance with this Agreement and solely during the Subscription Term, You shall have the limited, non-exclusive, non-transferable, non-sublicensable, and revocable right to access and use the Platform for Your internal business purposes in accordance with the Subscription Plan or as specifically stated in an Order Form.
1.2 Acceptable Use: You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare disassemble, reverse engineer, decompile or make the Platform available to any third party, other than in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) copy, modify, adapt, or hack the Platform otherwise attempt to gain or gain unauthorized access to the Platform or related systems or networks; (c) use the Platform to store or transmit Sensitive Personal Information; (d) use the Platform to store or transmit Customer Data in violation of applicable laws and regulations, including but not limited to violation of any person’s privacy rights, export control laws/regulations; (e) access it for purposes of creating derivative works based on, or developing or operating products or services for third-parties in competition with the Platform; (f) use the Platform to store or transmit any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (g) use the Platform to knowingly post, transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software; (h) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Platforms (through use of manual or automated means); (i) use the Platform in excess of any specified number of User(s) as mentioned in the Order Form; (j) share the login credentials allocated to each User with any other individual;
1.3 You agree and acknowledge that Your product fulfills the requirements for embedding the Application as detailed in the Documentation.
2.1 You may request a demo of Our Platform or a trial of the Platform by creation of accounts for trial use for a limited period of time (“Trial Period”). The Trial Period shall be subject to this Agreement and any additional terms that We specify. We, in our sole discretion, shall have the right to terminate the Platform and Your right to use the Platform at any time during the Trial Period and for any reason, without being liable to You.
3.1 Except for the rights granted to You under Clause 1.1, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Platform, including patents, inventions, copyrights, trademarks, domain names, algorithm, methodologies, trade secrets, know-how, shall belong to and remain exclusively with Us and Our licensors.
3.2 You own the rights to the Customer Data that You provide to Us. We do not claim ownership over such Customer Data. You grant to Us a royalty-free license and right to use Customer Data solely to provide, support, maintain and improve the Platform. Except for the rights expressly granted to Us herein, You do not grant any ownership rights in relation to the Customer Data to Us.
3.3 If You choose to provide any suggestions, enhancement requests, recommendations or other feedback with regard to the Platform (“Feedback”), We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate the Feedback into the Application and the Platform.
3.4 You may be granted the limited right to use ScaleKit’s trademark or logo in the form and manner authorized by ScaleKit to display that the Application is powered by ScaleKit.
3.5 All rights not expressly provided to You herein are reserved.
The Platform enables integration with a range of Third-party Service(s). You acknowledge and agree that Your use of Third-party Service(s) will be subject to the terms and conditions and privacy policies of such third-party and that We shall not be liable for Your enablement, access or use of such Third-party Service(s), including Your data processed by such third party. You should contact that Third-party service provider for any issues arising in connection with use of such Third-party Service(s). You shall be responsible for providing the required notices or obtaining the consent or required approvals as required by applicable laws from User(s) or End-User(s) for enablement of such Third-party Service(s) and transmitting Customer Data to ScaleKit through them.
5.1 Subscription Charges: All charges associated with Your Account shall be based on the Subscription Plan You have subscribed to (“Subscription Charges”) and any other details regarding such Subscription Charges shall be mentioned in an Order Form. The Subscription Charges are due in full and payable in advance when You subscribe to the Platform.
5.2 Renewal: Unless Your Account and subscription to the Platform is terminated, Your subscription to the Platform will renew for a Subscription Term equivalent in length to the then expiring Subscription Term at the then prevailing Subscription Charges.
5.3 Payment: You hereby authorize Us or Our authorized agents, as applicable, to bill You upon Your subscription to the Platform (and any renewal thereof). Unless otherwise stated in an Order Form, Your payment is due within thirty (30) days of Our invoice date.
5.4 Refunds: Unless otherwise specified in this Agreement, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Platform.
5.5 Late Payments/Non-payment of Subscription Charges: We will notify You in the event We do not receive payment towards Subscription Charges within the due date. We must receive payments within a maximum of ten (10) days from the date of Our notice of Your non-payment. If We do not receive payment within the foregoing time period, in addition to our right to other remedies available under law, We may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to and use of the Platforms until We receive Your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your Account.
5.6 Applicable Taxes: Unless otherwise stated, the Subscription Charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).
6.1 The Subscription Term shall be as per Your Subscription Plan.
6.2 Termination by You: You may terminate one or more of Your Account(s) in the event We materially breach this Agreement, provided that You shall provide an advance notice of such breach and afford Us not less than thirty (30) days to cure such breach. In case of such termination, We shall, pro-rata, refund the Subscription Charges for the remainder of the Subscription Term.
6.3 Suspension and Termination by Us: In addition to suspension for late payment or non-payment of Subscription Charges, We may suspend Your access to and use of Your Account or the Platform if You or Your Users are in violation of this Agreement. We will provide You with a period of thirty (30) days (“Cure Period”) to cure or cease such activities which violate this Agreement. If You fail to cure or cease such activities within said Cure Period or if We believe that such breaches cannot be cured, Your Account shall be terminated forthwith. We may also terminate Your Account(s) in accordance with Clause 2.1 or at the end of a Trial Period unless You subscribe to a Subscription Plan. Further, We also reserve the right to terminate Your Account at any time by notice due to business reasons which shall include discontinuation of the Platform in whole or any particular functionality or service.
6.4 Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate this Agreement with notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies) which are dismissed within sixty (60) days, or has a receiver or trustee appointed for substantially all of its property.
6.5 Effect of Terminating Your Account: Following the termination of Your Account either by Yourself or by Us, Your access and use of the Platforms shall cease. We retain all Customer Data in our possession for 30 days from the date of effective termination (“Data Retention Period”) unless We are mandated by applicable law to retain some or all of the Customer Data. We shall reasonably assist You if You choose to export the Customer Data during the Data Retention Period. Beyond the Data Retention Period, We shall delete all the Customer Data in Our possession.
7.1 If You choose, or are provided with a login, and password, You must treat such information as confidential and refrain from disclosing it to any unauthorized personnel. We shall not be responsible for any consequences arising out of such non-compliance by You. We shall have the right to disable any Account, at any time, if You fail to comply with this Clause.
7.2 Except as otherwise expressly permitted pursuant to this Agreement, each of the Parties may use the other’s Confidential Information solely to perform its obligations under this Agreement and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents on a need-to-know basis.
7.3 You acknowledge that Our privacy policy shall apply where We Process the Personal Data of Users as a Data Controller as mentioned in Our privacy policy. Except for the foregoing, You understand and acknowledge that, in connection with (i) the use of the Platform by Yourself, Your Users and/or (ii) the interaction with the Application by the End Users, We Process any Personal Data forming a part of the Customer Data, only on Your behalf as a data processor. We shall Process such Personal Data only for the purposes of providing the Platform and the Application in accordance with this Agreement. Where We Process Personal Data forming a part of the Customer Data that originates from the European Economic Area (EEA), United Kingdom (UK) and/or Switzerland, the Data Processing Agreement shall apply to such Processing, in addition to this Agreement.
7.4 We shall use appropriate technical and organizational measures to protect the Customer Data. The measures used are designed to provide a level of security appropriate to the risk of Processing the Customer Data. We shall, without undue delay, notify You of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Customer Data processed by Us.
7.5 You acknowledge and agree that We may access or disclose information about You, Your Account, Users, End-Users including Customer Data in order to (a) comply with the law or respond to lawful requests or legal process; or (b) enforce our rights under this Agreement or in defense of legal claims.
7.6 During the Subscription Term, You agree and acknowledge that We shall have the right to collect data (only aggregated and anonymized data) regarding (i) You and Your Users’ usage of the Platform for the purpose of providing, maintaining and updating the Platform and (ii) End-Users’ interaction on the Application through Your product for the purpose of improving the Application.
8.1 EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE PLATFORM IS PROVIDED “AS IS'' WITHOUT WARRANTY OF ANY KIND. WE ALSO DISCLAIM WARRANTY OF ANY KIND WITH RESPECT TO THE PLATFORM, THE APPLICATION AND THE EMBEDMENT OF YOUR PRODUCT WITH THE APPLICATION THROUGH THE PLATFORM, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
8.2 YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ACCESS TO THE PLATFORM, THE APPLICATION, THE FEATURES FORMING A PART OF THE APPLICATION AND THE EMBEDMENT THROUGH THE PLATFORM, WHICH ARE PROVIDED OVER PUBLIC TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND OUR CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.
8.3 WITHOUT LIMITING THE FOREGOING CLAUSES 8.1 AND 8.2, WE EXPRESSLY DISCLAIM ANY WARRANTY THAT THE APPLICATION AND ANY USE THEREOF WILL BE ACCURATE, RELIABLE, OR FREE FROM ANY DEFECTS.
8.4 YOU ACKNOWLEDGE AND AGREE WE ARE NOT RESPONSIBLE FOR ANY MALFUNCTIONS, ERRORS, INACCURACY AND THE INABILITY TO ACCESS YOUR PRODUCT THAT ARISE OUT OF THE INCOMPATIBILITY OF YOUR PRODUCT WITH THE APPLICATION.
9.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR AGGREGATE LIABILITY AND THAT OF OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE PLATFORM, WILL BE LIMITED TO AN AMOUNT EQUAL TO 12 (TWELVE) MONTHS OF THE SUBSCRIPTION CHARGES PAID BY YOU FOR THE PLATFORM PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
9.2 IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.3 NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, WE DISCLAIM ALL LIABILITIES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE PLATFORM OFFERED DURING THE TRIAL PERIOD.
10.1 Indemnification by You: You will indemnify and hold Us harmless against any claim brought by a third party against Us, Our respective employees, officers, directors and agents arising from Your breach of Clause 1.2 of this Agreement provided that (a) We promptly notify You of the threat or notice of such a claim, (b) You will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) We shall fully cooperate with You in connection therewith.
10.1 Our Platform is intended for use by businesses. This Policy is not applicable to Our processing of any Personal Data forming a part of the Customer Data. We may receive End- Users’ Personal Data as a part of the Customer Data for which We will only act as a Processor and such processing will be governed by the Customer Agreement. In such a case, the End-User’s data privacy questions and requests should be submitted to the Customer in its capacity as a Data Controller. We are not responsible for Customers’ privacy or security practices which may be different from this notice. Customers of the Platform are solely responsible for establishing policies for and ensuring compliance with all applicable laws and regulations, as well as any and all privacy policies, agreements, or other obligations, relating to the collection of Personal Data in connection with the use of Platform by the Customer or the interaction with the Application by the End-Users.
10.2 Our Website(s) contain links to other Websites. Our Policy applies only to Our Website(s), so if You click on a link to another Website, You should read their privacy policy. We encourage You to review the privacy statements of any such other Websites to understand their Personal Data practices.
11.1 Assignment: This Agreement and any rights or obligations hereunder may not be assigned by You without Our prior written consent. This Agreement bind, and inures to the benefit of the Parties and their respective successors and permitted assigns.
11.2 Amendment: We may amend this Agreement from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any material amendments to this Agreement and Your continued use of the Platform following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment.
11.3 Severability: No Waiver: If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of this Agreement shall remain in effect. Our non-exercise of any right under or provision of this Agreement does not constitute a waiver of that right or provision of this Agreement.
11.4 Relationship of the Parties: The Parties are independent contractors. This Agreement do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
11.5 Survival: All clauses which, by their nature are intended to survive, including without limitation Clauses 3 (Intellectual Property Rights), 5 (Charges and Payment), 6.5 (Effect of Terminating Your Account), 7 (Confidentiality, Data Privacy and Security), 8 (Disclaimer of Warranties), 9 (Limitation of Liability), 10 (Indemnification), 11 (Miscellaneous) and 12 (Definitions) shall survive any termination of Our agreement with Yourself regarding the use of the Platform. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
11.6 Export Compliance and Use Restrictions: You represent that You are not on any U.S. government denied-party list. You acknowledge that You will not permit any User to access or use the Platform in Russia or a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria or Crimea) or in violation of any U.S. export law or regulation.
11.7 Anti-Bribery: Neither party has received or been offered any illegal or improper bribe, rebate, payoff, influence payment, kickback, or other thing of value from an employee or agent of the other party in connection with this Agreement.
11.8 Notices and Consent to Electronic Communications: All notices from Us under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery Platform (“Courier”) or to the contact mailing address provided by You while subscribing to the Platform; or (ii) electronic mail to the e-mail address provided to Your Account. Our address for a notice is: 19160 NE 67th Way, Redmond, WA 98052 with a CC to support@scalekit.com by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
11.9 Publicity Rights: You hereby grant Us a royalty-free, worldwide, transferable license to use Your trademark or logo to identify You as Our customer on Our Websites and/or marketing collateral and to include Your use of the Platforms in case studies.
11.10 Dispute Resolution, Governing Law and Jurisdiction:
11.10.1 Choice of Arbitration: This Agreement shall be governed by the laws of the State of Delaware, USA without regard to any conflict of laws principles. The Parties agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules (“AAA Rules”), and judgement on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The language of the arbitration shall be English. The dispute shall be resolved by a sole arbitrator who shall be appointed in accordance with the AAA Rules. The decision of the sole arbitrator shall be final and binding on the Parties.
11.10.2 Choice of Courts: Where this arbitration provision is found to be null and void or if You choose to opt out of the arbitration provision in accordance with Clause 11.10.d, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof shall be resolved by submitting to the exclusive personal jurisdiction of the courts in Wilmington, Delaware, USA in accordance with the laws of the State of Delaware, USA without regard to the principles of conflicts of laws.
11.10.3 Waiver of Class Action and Jury Trial: The Parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, group, or representative action. If for any reason a claim proceeds in court rather than in arbitration, You and ScaleKit each waive any right to a jury trial.
11.10.4 Thirty-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in Clause 11.10 by sending written notice of your decision to opt out to the following email address: support@scalekit.com. The notice must be sent within 30 days of Your first use of the Platform. If You opt-out of these provisions, ScaleKit will also not be bound by them.
11.11 Entire Agreement: This Agreement, together with any Order Forms, constitute the entire agreement, and supersede any and all prior agreements between You and Us with regard to the subject matter hereof. In the event of a conflict between the terms of any Order Form and this Agreement, the Terms shall prevail.
11.12 Force Majeure: Notwithstanding anything to the contrary contained elsewhere, We shall not be liable for unavailability of the Platform caused by circumstances beyond its reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control, failure of public telecommunication systems, or acts undertaken by third parties including distributed denial of service attacks.
When used in this Agreement with the initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by You or on Your behalf for access and use of the Platform.
API: means the application programming interfaces developed, enabled by or licensed to Us that permits access to certain functionality provided by the Platform.
Application: means Our proprietary product that shall provide services such as authentication, user management, authorization, audit logs on Your product upon embedding through the Platform.
Confidential Information: means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of this Agreement, Customer Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
Customer Data: means all electronic data, text, messages, personal data or other materials, including without limitation Personal Data of Users and End Users, submitted to the Platform or to the Application (i) by You through Your Account or (ii) obtained on Your behalf in connection with Your use of the Platform or (iii) by Your End-User(s).
Data Controller: means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Platform provided or made available by Us to You or Your Users through the Platform or otherwise.
End-User(s): means any person or entity other than You or Your Users who interacts with the Application through Your product.
Order Form: means any Platform order form or statement of work specifying the Platform subscribed to, particular features and functionalities in the Platform that You wish to avail and the Subscription Term.
Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the Data Controller.
Platform: means and includes (i) ScaleKit’s proprietary online platform that enables You to embed the Application with Your product, (ii) the Application and (iii) any new service that We may introduce to which You may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, the Software, the API and any Documentation.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Sensitive Personal Information means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws.
Subscription Plan: means the subscription plan, including the pricing, usage limits, Subscription Term or particular features and functionalities You may opt for as detailed on the Website and updated by Us from time to time or as set forth in an applicable Order Form.
Software: means software provided by Us (either by download or access through the internet) that allows You to use any functionality in connection with the Platform.
Subscription Term: means the period during which You have agreed to subscribe to the Platform specified in the subscription plan or in a relevant Order Form
Third-party Service(s) shall mean third party application(s) or services integrating with the Platform through APIs or otherwise enabled through the Platform which require You to have Your own accounts and/or agreements with such third-party application(s) or services in order to utilize them.
User: means those who are designated users within the Platform, including an Account administrator, agents and other designated users.
Website(s) shall mean the websites owned and operated by Us.