Terms of Service

This Services Agreement (the “Agreement”), effective as of the date of its acceptance (the “Effective Date”), is by and between Kea Cloud, Inc., a Delaware corporation (“Kea”) and the client, and its affiliates (“Client”) (each, individually, a “Party” and collectively, the “Parties”).

In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, Kea and Client agree as follows:

1. Services. Subject to Client’s payment of all fees payable in accordance with the terms of this Agreement, Kea shall provide to client certain voice artificial intelligence technology services that: (i) answer brand and store-related frequently asked questions, and (ii) direct callers on how to place an order (the “Services”). Kea may use the services of subcontractors as it sees fit to deliver any of the Services.

Kea retains the right to change the Services; provided, however, that Kea shall provide Client with at least thirty (30) days prior written notice of any such changes.

2. Client Responsibilities. Client hereby agrees that it shall comply with the following:

1. Pay all fees due and payable under the Agreement.

2. Provide a primary point-of-contact who will be responsible for coordinating and communicating decisions related to the Services on behalf of Client.

3. Provide timely access to Client’s facilities, network, equipment and hardware, software applications and environment, as well as any employees or staff reasonably required by Kea to provide the Services.

4. Ensure that all of its network and infrastructure, including servers, PCs, routers, firewalls, switches, operating systems, anti-virus software, critical third party applications (collectively, its “IT Infrastructure”) meet the minimum specifications designated by Kea, which Kea may update from time to time.

5. Implement and maintain information technology and security policies and procedures that are consistent with industry best practices, and provide Kea with a written copy of the same.

3. Relationship of Parties. 

Independent Contractor. In the performance of the Services under this Agreement, it is agreed Kea (including its owners, officers, employees, agents, representatives, and subcontractors) is, and at all times shall be, an independent contractor. Nothing in this Agreement shall in any way be construed to constitute, create, or otherwise imply an employment, joint venture, partnership, agency, or similar arrangement. Kea assumes sole responsibility for determining the manner and means of performance hereunder. Kea may not bind Client to any obligation, contract, agreement, or arrangement. 

4. Licenses. During the Term, Kea hereby grants Client a limited, revocable, non-exclusive, non-transferrable (except to its parent, affiliates, and/or subsidiaries), non-sublicensable license to use Kea intellectual property included in the delivery of Services under this Agreement; provided that, Client shall be permitted to grant sublicenses to its parent, affiliates, subsidiaries, joint ventures, and franchisees as needed for their receipt of the Services as delivered by Kea. Upon the termination of this Agreement, this license grant shall end immediately, and Client shall no longer be allowed to use any Kea technology and/or intellectual property.

During the Term, Client hereby grants Kea a limited, revocable, non-exclusive, non-transferrable, non-sublicensable (except as approved by Client in writing) license to use Client’s trademarks, trade name including its logos, for Kea’s marketing and promotional materials;  provided that, Kea’s use of Client’s name, logo, or other trademarks shall be consistent with Client’s then-current brand guidelines, and shall in no way defame Client.

5. Data Ownership. Any and all information of, about or relating to the end customers of Client (including, but not limited to, email addresses, postal addresses, phone numbers) that may be provided to or collected by Kea (collectively, “Customer Information”) shall be owned by Client. Except as authorized in this Agreement, Kea will not disclose to any third party or use any Customer Information for any purposes other than as required to fulfill its obligations to Client under this Agreement and/or for delivering to such customers the Services. Kea shall not retain any Customer Information longer than necessary to perform the Services or as required to meet its legal or compliance obligations or as permitted by applicable local laws, rules, or regulations.

6. Confidentiality. 

1. Confidential Information. “Confidential Information” means any non-public information about the Party disclosing such information (the “Disclosing Party”), its business, vendors, customers, products, services, and employees; its finances, policies, and practices; its research and development efforts; marketing and distribution efforts; licensing, c and other information, regardless of whether marked or otherwise indicated as confidential or proprietary, and which should reasonably be understood to be proprietary or confidential given the nature of the information and/or the circumstances of its disclosure. The Services and their underlying software constitute Confidential Information of Kea. Confidential Information shall not include information that: (i) is now or subsequently becomes generally available to the public through no fault or breach on the part of Party receiving the Confidential Information (the “Receiving Party”); (ii) the Receiving Party can demonstrate that it had lawfully in its possession without an obligation of confidentiality prior to disclosure hereunder; (iii) is independently developed by the Receiving Party without the reference to or use of any Confidential Information of the Disclosing Party as evidenced by written documentation; or, (iv) the Receiving Party lawfully obtains from a third party who has the right to transfer or disclose it and who provides it without any obligation to maintain the confidentiality of such information. 

2. Use Restrictions. The Receiving Party agrees to maintain the confidential nature of the Confidential Information of the Disclosing Party in its possession by taking reasonable steps to protect such Confidential Information from unauthorized use, access, and disclosure; such steps shall be at least equal to those taken by the Receiving Party to protect its own Confidential Information and no less than a reasonable standard of care. The Receiving Party shall only use, access, and disclose Confidential Information as necessary to fulfill its obligations under this Agreement or in exercise of its rights expressly granted hereunder. Receiving Party shall not, and shall not assist others to, directly or indirectly disclose, sell, copy, distribute, republish, disassemble, decompile, reverse-engineer, create derivative works from, demonstrate, or otherwise attempt to recreate the Confidential Information of the Disclosing Party, or allow any third party to have access to any of Disclosing Party’s Confidential Information, without the Disclosing Party’s prior written consent; provided that: (i) Receiving Party may disclose the Disclosing Party’s Confidential Information to associated partners, professional service providers, and related entities who have a need to know; and, (ii) all use of the Disclosing Party’s Confidential Information by third parties shall be subject to restrictions no less stringent than those set forth in this Agreement. With the express exception of trade secrets, for which the confidentiality obligations of this Agreement shall survive until such trade secrets become publicly known in accordance with Section 6(a), each Party agrees that its obligations with respect to the other Party’s Confidential Information shall survive for a period of three (3) years following the termination or expiration of this Agreement.

3. Legally Required Disclosure. The Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities (such requested information being referred to herein as “Legally Required Disclosure”), provided that the Receiving Party: (i) gives the Disclosing Party reasonable written notice (to the extent permitted by law) to allow the Disclosing Party to seek a protective order or other appropriate remedy; (ii) discloses only such information as is required by the governmental entity; and, (iii) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.

4. Return; Destruction. The Receiving Party shall, at the Disclosing Party’s option and written instruction, return, destroy, or make permanently unreadable all materials embodying Confidential Information (in any form and including, without limitation, all summaries, copies, and excerpts thereof) promptly following the Disclosing Party’s written request. 

7. Privacy and Data Security.

1. Privacy Law Compliance. To the extent either Party is or becomes subject to any domestic and/or international data and security or privacy laws as may be updated or come into effect from time to time, each Party represents and warrants that it will adhere to these laws and associated regulations and rules. In the event either Party determines that the Services provided under this Agreement are subject to such laws and associated regulations and rules, such Party shall promptly notify the other Party of its determination in writing.

2. Service Provider status under CCPA. Kea represents, warrants, covenants and agrees that it (i) is, and will maintain its status as, a “service provider” as defined by the California Consumer Privacy Act, as well as in the California Attorney General implementing regulations (collectively “CCPA”); (ii) will not “sell” Client’s “personal information” (as those terms are defined under the CCPA); (iii) acknowledges that Client is the owner and controller of the Client personal information; (iv) will not retain, use, or disclose Client personal information for any commercial purpose other than providing the services specified in the this Agreement; and (v) will reasonably cooperate with Client’s responses to consumer rights requests, and at minimum promptly facilitate Client’s ability to identify, retrieve, copy and/or delete specific personal information of specific data subjects.

3. Data Security. Kea shall maintain reasonable and appropriate physical, technical, and administrative safeguards designed to protect against the unauthorized disclosure of or access to its and Client’s end customer’s personal information.

4. Breach Notification. Kea shall notify Client upon becoming aware of any actual breach of the security of Client’s Confidential Information or information related to Client’s consumers. A breach of security refers to any known or suspected breach or default in the confidentiality, integrity, accuracy, security, or privacy of such information. 

8. Fees and Payment.

1. Fees. Client shall pay Kea a monthly per store fee set forth in the Order Form (the “Fee”) for the Services.
   
2. Billing and Payments. Billing and payment terms shall be as set forth in the Order Form. Undisputed Fees not paid when due shall be assessed a late fee of 1.5% for each month that payment is overdue, or the highest interest rate permitted by applicable law, whichever is lower. 

3. Changes to the Fee. We may change our fees and the price of our service from time to time. We will notify you at least (30) days before any price changes will become effective. This Agreement will be amended into that new price change. If you do not wish to accept the price change or change to your subscription plan, you can cancel your subscription before the change takes effect.

9. Term; Termination. 

1. Term. This Agreement shall commence on the Effective Date and shall continue for the period set forth on the Order Form (the “Term”).

2. Renewal. This Agreement will automatically renew on a month-to-month basis unless terminated by either Party upon notification to the other Party.

3. Termination. This Agreement may be terminated as follows: (i) by the non-breaching Party upon the other Party’s breach of any of its obligations under this Agreement provided that such breach has not been cured within thirty (30) days following its receipt of written notice of such breach; or (ii) with immediate effect by either Party upon the other Party becoming insolvent or bankrupt, liquidating or being dissolved, or ceasing substantially all of its business. Upon termination, all Fees owed for Services rendered shall be due immediately and in full. With the exception of the Implementation Fee, which is non-refundable. For Clients wishing to terminate services, the written notice must be received at least five (5) days prior to next billing cycle. 

4. Return of Property. Upon termination of this Agreement, Kea shall, at Client’s sole discretion and written request, immediately return, destroy, or otherwise make permanently unreadable all Client property in Kea’s control or possession.

10. Representations and Warranties; Disclaimers. 

1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing as an entity under the laws of its place of organization; (ii) it has the full right, power, and authority to enter into this Agreement, to grant the rights and  licenses hereunder and to perform its obligations hereunder; (iii) its execution of this Agreement has been duly authorized by all necessary corporate action of the Party; and, (iv) this Agreement constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

2. Limited Warranty. Kea represents and warrants that (i) the Services will perform substantially in accordance with its intended functionality and any documentation provided by Kea to Client under normal circumstances and when used as prescribed by Kea, and, (ii) the Services provided hereunder will be performed in a professional manner in accordance with prevailing industry standards. Provided that Client notifies Kea of any breach of the foregoing warranty during the Term, Kea shall, as Client’s sole and exclusive remedy, provide support services as reasonably requested by Client at no additional cost to Client and, in the event such support does not cure the breach, Client shall have the option to terminate this Agreement with immediate effect. 

3. Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, KEA MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE REGARDING THE SUITABILITY OF ITS PRODUCTS AND SERVICES FOR ANY PARTICULAR PURPOSE, NOR DOES KEA ASSUME ANY LIABILITY WHATSOEVER ARISING OUT OF THE SERVICES. THE PRODUCTS LICENSED AND SERVICES SOLD HEREUNDER HAVE BEEN DEVELOPED FOR THE GENERAL PUBLIC AND MAY NOT BE COMPLETELY COMPATIBLE WITH ANY PARTICULAR IT INFRASTRUCTURE. KEA’S TECHNOLOGY COMPRISES OF OPEN SOURCE CODE AND OTHER OPEN SOURCE INTELLECTUAL PROPERTY; ACCORDINGLY, KEA MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING THE UNDERLYING INTELLECTUAL PROPERTY USED IN ITS TECHNOLOGY AND SOFTWARE.

11. Limitation of Liability. 

1. No Consequential or Indirect Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXCLUDED IN SECTION 11(b) BELOW, IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

KEA SHALL NOT BE LIABLE FOR OR BEAR ANY RESPONSIBILITY FOR: (A) ANY DAMAGES INCURRED AS A RESULT OF A DELAY OR FAILURE TO PERFORM SERVICES UNDER THIS AGREEMENT OR FOR INTERRUPTION IN THE SERVICES RESULTING, DIRECTLY OR INDIRECTLY, FROM ANY CAUSE BEYOND KEA’S DIRECT CONTROL; (B) SOFTWARE ERRORS IN THE TRANSCRIPTION OF CUSTOMER ORDERS SO LONG AS THE SOFTWARE IS PROPERLY FUNCTIONING AS INTENDED AND THE END CUSTOMER HAS BEEN GIVEN THE OPPORTUNITY TO REVIEW AND CORRECT ANY SUCH TRANSCRIPTION ERRORS BEFORE SUCH CUSTOMER ORDER IS FINALIZED; (C) CLIENT’S FAILURE TO PROPERLY USE THE SERVICES AND/OR SYSTEMS IN THE MANNER PRESCRIBED BY KEA AND/OR LOCAL, STATE, AND FEDERAL REGULATIONS/LAWS; (D) FOR CLIENT’S FAILURE TO TIMELY PROVIDE KEA WITH ALL PERTINENT INFORMATION AS MAY BE REQUIRED UNDER THIS AGREEMENT; AND, (E) CLIENT’S FAILURE TO COMPLY WITH THIS AGREEMENT (OR ANY AMENDMENT THERETO) AND/OR ANY POLICY OR PROCEDURE AS AGREED UPON BETWEEN THE PARTIES IN WRITING.

2. Exclusions. THE LIMITATIONS SET FORTH IN THIS SECTION 11 SHALL NOT APPLY TO DAMAGES OR LIABILITIES ARISING FROM: (x) A MATERIAL BREACH OF ITS OBLIGATIONS UNDER SECTIONS [insert]; (y) INDEMNIFICATION OBLIGATIONS UNDER SECTION 12; OR, (z) THE GROSSLY NEGLIGENT OR INTENTIONAL ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF EITHER PARTY. 

12. Indemnification. 

1. Mutual Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party (the “Indemnitee”) from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees and court costs) (“Losses”) incurred by the other Party resulting from any third party claim, suit, action, or proceeding (“Claim”) which may arise, in whole or in part, out of: (i) the gross negligence or willful misconduct of the Indemnifying Party, its employees, or agents; or, (ii) a breach by the Indemnifying Party of its obligations under this Agreement.

2. By Kea. Kea shall indemnify, defend, and hold harmless Client from and against any and all Losses incurred by Client resulting from any third party Claim which may arise, in whole or in part, out of: (i) the infringement or misappropriation any third party’s intellectual property rights by any Services, deliverables, or Work Product performed or delivered by Kea under this Agreement; (ii) violation of any third party’s rights with respect to personal information or other data as a result of any unauthorized use or disclosure of such data by or on behalf of Kea; (iii) violation of any applicable data protection or privacy law; and, (iv) violation of any law, rule, or regulation governing the functioning and accessibility of consumer-facing electronic interfaces. In the event that Client’s use of the Services, in whole or in part, is enjoined by a court of competent authority, Kea shall, at its sole option and at its expense, either (A) promptly procure for Client the right to continue using the Services, or (B) modify or replace the Services, or the infringing portion of the Services, to avoid infringement without material impairment of their functionality. The Parties agree that, notwithstanding the foregoing, Kea will not have any liability under this paragraph with respect to any third-party claims to the extent such claims are directed at any modification of the Services by Client except as authorized by Kea in writing. 

13. Insurance. During the Term and for a period of one (1) year thereafter, Kea shall, at its sole cost and expense, maintain at all times appropriate insurance. Kea shall, at minimum, maintain the types of insurance listed below:

1. Workers’ Compensation Insurance as required by the laws of the state or states wherein the work is to be performed;

2. Commercial general liability insurance written on an occurrence basis against claims for bodily injury, death, or third party damage, with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate; 

3. Insurance covering intellectual property infringement, with a combined single limit of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate;

4. Cyber coverage with a combined single limit of not less than One Million dollars ($1,000,000) per occurrence; and,

5. Umbrella liability coverage with a combined single limit of not less than One Million Dollars ($1,000,000). 

If requested by Client, Kea shall deliver to Client a copy of the insurance policy or policies required hereunder. For all insurance coverages, Kea shall waive any rights of subrogation against Client and its parents and affiliates. 

14. Miscellaneous. 

1. 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 (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, disease, epidemics, pandemics, strikes, labor stoppages or slowdowns, passage of law or any action taken by a governmental or public authority in its sovereign or contractual capacity, or other unforeseeable events beyond the control of a Party. 

2. Governing Law; Venue. This Agreement, including all exhibits attached hereto, and all matters arising out of this Agreement, shall be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements executed and fully performed therein, without giving effect to the conflict of laws provisions thereof. Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted exclusively in the courts located in the State of Delaware located in New Castle County, and each Party irrevocable submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. 

3. Binding Effect; Assignment. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns. Except as described below, neither Party may assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of non-assigning Party. Any purported assignment or delegation in violation of this Section is null and void. 

1. Headings. The headings of this Agreement are inserted for convenience only and are not to be considered in construction of the provisions hereof. 

2. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction. On a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

3. Survival. The provisions of this Agreement shall survive the expiration or earlier termination of this Agreement to the extent necessary to give effect to such provisions.

4. Counterparts. This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 

5. Amendment; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on, or estoppel with respect to, any future occasion. No failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement shall constitute a waiver or estoppel of any right, remedy, power, privilege, or condition arising under this Agreement and shall not preclude any other or further exercise thereof. 

4. Notices. Any notice shall be deemed to have been delivered on the date the notice was deposited with the U.S. Mail or other carried. Notices shall be mailed to the last known address of the Party to which it is being sent. Notices may be delivered by electronic mail (“e-mail”) provided, the recipient confirms receipt of such e-mail.

5. Entire Agreement. The terms of this Agreement are intended by the Parties to be the complete and final expression of their agreement with respect to the subject matter hereof, and supersede all prior understandings and agreements, whether written or oral.