Terms of Use

Effective Date: 04/21/2022

Kalio, Inc. (“Kalio”) owns and operates the https://www.kaliocommerce.com website (the “Website”) and offers you (“you” or “your”) access to Kalio’s proprietary e-commerce software and cloud-based delivery platform (the “KalioCommerce Platform”).  

The following terms and conditions (the “Terms”) govern your access to and use of the Website and the KalioCommerce Platform, and any related professional services. Please read these Terms carefully, including the binding arbitration terms, before using or accessing the Website or the KalioCommerce Platform. By accessing and using the Website or the KalioCommerce Platform, you (either an individual or a legal entity that you represent as an authorized employee or agent) agree to these binding Terms and consent to Kalio’s privacy practices, as described in the Kalio Privacy Policy located at https://www.kaliocommerce.com/about-kalio/privacy-policy and incorporated herein by reference. These Terms and the Kalio Privacy Policy may be amended from time to time, with or without notice to you. Do not use the Website or the KalioCommerce Platform, in any way, if you do not agree to all of the terms and conditions of these Terms.

By accessing the Website and/or using the KalioCommerce Platform (or any other product or service offered by Kalio), you are representing that you are properly authorized to form a binding contract and have not been barred from receiving goods or services under the laws of any country or other applicable jurisdiction. You are also representing that all information provided to Kalio is true, accurate and complete and that you will ensure it remains true, accurate and complete at all times. In addition, when using the Website or the KalioCommerce Platform, you agree to comply with all local, state, federal, and international laws, rules and regulations.

GENERAL DISCLAIMERS

The information provided on the Website is for informational purposes only and does not create a business or professional services relationship between you and Kalio. Information on the Website includes all text, images, links, downloadable white papers, reports and case studies. Kalio provides information on the Website without warranty of any kind, express or implied. Content is subject to change without notice.

Any mention of products and services that Kalio does not directly own or offer are for informational purposes only. Unless specifically stated otherwise, Kalio does not endorse or recommend any third-party products and services.

Links on the Website or available through the KalioCommerce Platform may direct you to websites that Kalio does not operate. Kalio takes no responsibility or liability (whether directly or indirectly) for any damage or loss caused or alleged to be caused by or in connection with such websites and makes no judgment, endorsement or warranty related to such websites, their security or the content they contain. Any use you make of the information provided on the Website or available through the KalioCommerce Platform, or any website or service linked to from the Website or the KalioCommerce Platform, is at your own risk.

ACCESS TO THE WEBSITE AND KALIOCOMMERCE PLATFORM

General, public content available on the Website may be accessed and viewed by anyone. However, access to the KalioCommerce Platform is only available to US customers who purchase a subscription for such access (“Customers”). Professional services can be purchased via a statement of work signed by you and Kalio. Kalio may refuse to offer access to the KalioCommerce Platform or to provide professional services to any person or entity at any time and may change its eligibility criteria, at any time, in its sole discretion.

CUSTOMER REGISTRATION

Customers of the KalioCommerce Platform will have access to a web-based administrator console. As a Customer, you will be able to designate administrator and/or development users through the administrator console. During the registration process, you will be required to provide Kalio with certain information and you will establish a username and a password for access to the administrator console. By providing such information, you represent and warrant that such information is accurate, current and complete and you agree to update such information to keep it accurate, current and complete. Kalio reserves the right to suspend or terminate your access to the administrator console if any information provided during the registration process or thereafter proves to be inaccurate, out of date or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and will take sole responsibility for any activity or actions occurring through your access to the administrator console, whether or not you have authorized such activity or actions. You will immediately notify Kalio of any unauthorized access to or use of your login credentials. By signing up for access to the KalioCommerce Platform, you agree that Kalio may send you occasional emails relevant to your access to and use of the KalioCommerce Platform.

FEES AND PAYMENT TERMS

Access to and use of the KalioCommerce Platform requires you to pay a monthly subscription fee for the duration of your subscription. Additional fees may be incurred for professional services rendered by Kalio pursuant to a valid statement of work. Where on-site visits are required and approved to perform project work, you will be billed for travel time at Kalio’s then-current rate for one-way travel to your site. Kalio will be responsible for the time returning from your site. Kalio reviews all agreements annually on renewal dates and reserves the right to increase prices or pricing structures in its sole discretion in connection with such renewals.

By purchasing a subscription to the KalioCommerce Platform or professional services, you are expressly agreeing that Kalio is permitted to bill you for the applicable fees, any applicable taxes and any other related charges. If payment is not received when due, Kalio reserves the right to either suspend or terminate your access to the KalioCommerce Platform, Kalio’s performance of the professional services and/or terminate these Terms.

All fees are payable in U.S. Dollars and are non-refundable. Subscription fees for the KalioCommerce Platform are billed in advance on a monthly basis. Time and material charges for professional services or other approved work or expenses will be invoiced twice monthly. All payments are due within thirty (30) days after the date of the applicable invoice.

RIGHTS AND PROHIBITED ACTIVITIES

Subject to your compliance with these Terms, Kalio grants you a non-transferable, non-exclusive, revocable, limited license to access the Website and use the KalioCommerce Platform solely as permitted by these Terms, including the right to modify any front-end code received from Kalio as necessary to fully utilize the KalioCommerce Platform as contemplated herein. Kalio reserves all rights not expressly granted to you herein.

By accessing the Website and/or using the KalioCommerce Platform, you agree not to:

  • Make available any content that is unlawful, harmful, tortious, defamatory, vulgar, obscene, invasive of another’s privacy, hateful, racially or ethnically discriminatory, or otherwise objectionable.
  • Make available any content for which you do not have sufficient legal rights.
  • Use the Website or the KalioCommerce Platform to violate Kalio’s rights, the rights of any third-party or any applicable local, state, federal or international law, including any rules or regulations having the force of law.
  • Violate any contractual or fiduciary obligation.
  • Use the Website or the KalioCommerce Platform in any manner that is designed to interfere, interrupt, change, adversely affect or limit the functionality of the Website, the KalioCommerce Platform or any other computer software, hardware or telecommunications equipment.
  • Use the Website or the KalioCommerce Platform to collect or store personal data of third parties without their knowledge and informed consent.
  • License, sell, transfer, assign, distribute, host or otherwise commercially exploit the Website or the KalioCommerce Platform.
  • Modify, prepare derivative works of, disassemble, decompile or reverse engineer any part of the Website or the KalioCommerce Platform.
  • Access the Website or the KalioCommerce Platform in order to build a similar or competitive website, product, application or service without Kalio’s express prior written consent.
  • Attempt to gain unauthorized access to another user’s account or another user’s activities on the Website or the KalioCommerce Platform without permission.
  • Upload, transmit or otherwise distribute to or through the Website or the KalioCommerce Platform any computer viruses, worms or other software intended to harm or interfere with the intended operation of any computer system or data.
  • Use any unauthorized scrapers, crawlers, bots or other automated program to access, query or search the Website or the KalioCommerce Platform without Kalio’s prior written consent.
  • Attempt to circumvent any access restrictions, content-related limitations or security procedures that Kalio uses.

All use of the Website or KalioCommerce Platform must be lawful, and you agree to notify Kalio if you learn of any misuse.

YOUR CONTENT

The Website and the KalioCommerce Platform allows you to submit content that you create or otherwise upload, such as product and promotional content, electronic images and textual data, and provides you with access to various public forums, including news groups, blogs or other areas where you have an opportunity to post information (collectively, “Your Content”). Your Content and all related copyrights, trademarks and other intellectual property rights, unless and to the extent in the public domain, are and shall remain solely your property, and Kalio shall not, directly or indirectly, duplicate, sell, use, lease, license, commercialize or otherwise exploit the Your Content for its own benefit or profit or assist any other person or entity, other than Client or its designees, to do so.

All of Your Content must comply with these Terms, including the Content Standards. By submitting Your Content to the KalioCommerce Platform, you represent and warrant that: (i) you have all rights, power and authority necessary to grant the rights to Your Content that are contained within these Terms; (ii) Kalio’s use of Your Content as contemplated herein does not and will not infringe or violate the rights of any third party or violate any law or regulation; and (iii) Your Content complies with these Terms.

Kalio takes no responsibility for and does not expressly or implicitly endorse any of Your Content. Because you alone are responsible for Your Content, you may expose yourself to liability if you post or share Your Content without the required rights or in violation of these Terms or applicable law.

CONTENT STANDARDS

The following content standards apply to all content (“Content”), including Your Content (collectively, the “Content Standards”).

All Content must comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, Content must not:

  • Contain any material that is false, inaccurate, defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
  • Promote sexually explicit or pornographic material, violence or discrimination based on race, gender, religion, nationality, disability, sexual orientation or age.
  • Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of Kalio’s or any other person or entity.
  • Violate any legal rights (including the rights of publicity and privacy) of others.
  • Contain any material that could give rise to any civil or criminal liability under applicable laws or regulations that may be in conflict with these Terms and Kalio’s Privacy Policy.
  • Be likely to deceive or threaten any person.
  • Promote illegal activity, or advocate, promote or assist any unlawful act.
  • Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
  • Impersonate any person or misrepresent your identity or affiliation with any person or organization.
  • Falsely or inaccurately give the impression that it emanates or is endorsed by Kalio or any other person or entity.

KALIO’S OBLIGATIONS

Kalio will have no obligation to screen, edit or monitor your use of the KalioCommerce Platform, including Your Content. Kalio does, however, have the right to:

  • Remove or refuse to post Your Content for any or no reason, in its sole discretion.
  • Take any action with respect to Your Content that it deems necessary or appropriate, in its sole discretion, including, but not limited to, if it believes that Your Content violates these Terms, any applicable law, infringes any intellectual property right of Kalio or any right of any other person or entity, threatens the personal safety of the users of the KalioCommerce Platform or the public, or which may create liability for Kalio.
  • Disclose your identity or other information about you to any third party who claims that Your Content violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the KalioCommerce Platform.
  • Terminate or suspend your access to all or any part of the KalioCommerce Platform for any or no reason, including violation of these Terms.  

Without limiting the foregoing, Kalio has the right to cooperate fully with any law enforcement authorities or court order requesting or directing it to disclose the identity or other information of anyone posting any materials on or through the KalioCommerce Platform.

You hereby waive and hold harmless the Kalio Entities (as defined below) from any claims resulting from any action taken by the Kalio Entities during, or taken as a consequence of, investigations by either the Kalio Entities or law enforcement authorities.

However, Kalio does not undertake to review any Content before it is posted on the KalioCommerce Platform and cannot ensure prompt removal of objectionable material after it has been posed. Accordingly, Kalio assumes no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party, including Content. Kalio has no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

COPYRIGHTS & THE DMCA

Kalio respects the intellectual property of others and asks that its users do the same. In connection with the Website and the KalioCommerce Platform, Kalio has adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of customers that repeatedly infringe intellectual property rights, including copyrights. If you believe that a customer is, through the use of the Website or the KalioCommerce Platform, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to Kalio’s designated Copyright Agent (named below):

  • your physical or electronic signature;
  • identification of the copyrighted work(s) that you claim to have been infringed;
  • identification of the material on the Platform that you claim is infringing and that you request Kalio to remove;
  • sufficient information to permit Kalio to locate such material;
  • your address, telephone number, and e-mail address;
  • a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
  • a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.

Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorneys’ fees incurred by Kalio in connection with the written notification and allegation of copyright infringement.

The designated Copyright Agent for Kalio: Mark Richards

Address of Agent: 4340 Stevens Creek Blvd Suite 250 San Jose, CA 95129

Telephone: 408-550-8040

Email: mrichards@kaliocommerce.com

ELECTRONIC COMMUNICATIONS

You acknowledge and agree that Kalio may send you periodic communications in connection with your use of the Website or the KalioCommerce Platform, such as marketing announcements, administrative messages, technical bulletins, notices about applicable fees and charges, transactional information, product announcements, other information concerning or related to the Website or the KalioCommerce Platform and you will not be able to opt-out of receiving them, other than by requesting that Kalio terminate your subscription or professional services.

These electronic communications are part of your relationship with Kalio and you consent to receive them as part of your use of the Website and/or your subscription to the KalioCommerce Platform. You agree that any notices, agreements, disclosures, or other communications that Kalio sends you electronically will satisfy any legal communication requirements, including that such communications be in writing.

NOTICES

All notices required or permitted by these Terms shall be in writing and shall be deemed given upon receipt, when delivered personally or by courier, email, overnight delivery service or confirmed facsimile, or 48 hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to: (a) Kalio at 19200 Stevens Creek Boulevard, Suite 110, Cupertino, California, 95014 or sent via facsimile at 408.996.1836; or (b) you at the address or contact information provided during registration. The parties may modify such information by providing notice consistent with the terms hereof.

MODIFICATION OF THE WEBSITE AND THE KALIOCOMMERCE PLATFORM

Kalio reserves the right, in its sole discretion, at any time to modify, suspend or discontinue, temporarily or permanently, the Website and/or the KalioCommerce Platform (or any part thereof) with or without notice to you. Except as set forth herein, Kalio will not be liable if, for any reason, all or any part of the Website or the KalioCommerce Platform are unavailable for any period. From time to time, Kalio may restrict access to or use of some or all of the Website and/or the KalioCommerce Platform to visitors or users generally or to you individually, for any or no reason.

Kalio will provide access to and management of the KalioCommerce Platform, and operation on a 24-hour-per-day, seven-day-per-week basis as described in the section below titled Cloud Platform and Customer Support Service Terms and Conditions.

By continuing to access or use the Website or KalioCommerce Platform after Kalio has posted notice of any modification on the Website or have otherwise provided you with notice of such modification, you are indicating that you agree to such modifications and to be bound by the modified Terms. If the modifications are not acceptable to you, your only recourse is to cease accessing the Website and/or the KalioCommerce Platform.

SUPSPENSION AND TERMINATION

The duration of your subscription to the KalioCommerce Platform and Kalio’s provision of professional services will be specified in the applicable order document or statement of work related to such subscription or services. Unless otherwise specified in the applicable order document or statement of work, all subscriptions will be for a period of two (2) years and will automatically renew for consecutive one-year renewal terms unless you notify Kalio in writing of your intent not to renew at least 60 days in advance of the expiration/renewal date.

If you breach these Terms, Kalio will have the right to suspend or disable your access to the Website or the KalioCommerce Platform and/or suspend its provision of professional services at its sole discretion, without prior notice to you.

You or Kalio may terminate these Terms: (i) by providing no less than six (6) months’ written notice to the other party; or (ii) immediately upon written notice to the other party in the event the other party does not cure a material breach within thirty (30) days after receipt of written notice of such breach. Without limiting the foregoing termination rights, if you fail to make any payment when due, Kalio may immediately terminate these Terms, your subscription to the KalioCommerce Platform and/or the provision of professional services unless bring your account current within five (5) days after your receipt of notice of such non-payment.

Upon any termination or expiration of these Terms, your subscription or the provision of professional services, (a) you must cease all use of the KalioCommerce Platform; (b) you must pay Kalio all amounts due as of the effective date of such termination or expiration; (c) promptly destroy all originals and copies of Kalio Confidential Information, including any materials related to or referencing the Website and/or the KalioCommerce Platform, in your possession or control and certify your compliance in writing to Kalio; and (d) except in the event of Kalio’s termination due to your uncured breach, and subject to Kalio’s receipt of all payments due, Kalio will deliver to you the following data files by means of a FTP site in a commercially reasonable format: (x) all of Your Content or other content related to your operational website, including product photos, artwork, logos, graphics and product-specific data such as SKU numbers, pricing and copy; (y) a copy of your most recent email database in Kalio’s possession, which database will include email addresses for individuals who have opted-out of your email program as well as undeliverable email addresses if information on undeliverable email address is captured by Kalio; and (z) a copy of any online and/or offline customer transaction data that Kalio collected on your behalf or received from you while these Terms were in effect, such as name, address, customer number, online order number, email address, items ordered, order date, order amount and account login and password information. In addition, upon your request, Kalio will (1) take reasonable steps to facilitate switching the DNS setting for your website to the new host; and (2) delete from Kalio’s equipment and all storage media, or otherwise destroy, all of the data described in paragraphs (x) through (z) above. Kalio reserves the right to charge you for these services on a time and materials basis.

Notwithstanding the termination or expiration of these Terms, your subscription or the provision of professional service, the terms and conditions governing your indemnification, your prohibited uses, the disclaimers of warranties, the limitation of Kalio’s liability, and any other provision which by its nature is intended to survive such termination or expiration, will survive such termination or expiration.

INTELLECTUAL PROPERTY

Kalio may, without restriction, anonymize any data collected in connection with your use of the Website and/or the KalioCommerce Platform and use it for business purposes, including aggregating it with data collected from other Customers for promotional purposes.

You will retain ownership of your rights in all information that you provide to Kalio in connection with the KalioCommerce Platform, including Your Content. You hereby represent and warrant that you have all of the rights necessary to grant such licenses and that such information does not (and will not) violate the rights of any third party or any law.

The Website, the KalioCommerce Platform and all related content are protected by copyright, trademark, and other intellectual property laws of the United States and foreign countries. As between you and Kalio, Kalio owns and will own all right, title and interest in and to the Website, the KalioCommerce Platform and all related content, including visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), software, services and all other elements, developments, modifications, derivative works and work product which relates to, interacts with or otherwise references the Website, the KalioCommerce Platform or any other Kalio products or services, and all associated intellectual property rights in any of the foregoing available in any jurisdiction. To be clear, Kalio owns and will own all right, title and interest in and to any computer code, such as HTML markup, CSS and Javascript code, that Kalio or you may develop to facilitate interoperability with the KalioCommerce Platform and you agree to assign, and hereby assign, to Kalio all rights, title and interest you may have or which you may acquire in any of the foregoing identified as being owned by Kalio.

Kalio™, Kalio Commerce™, are trademarks or registered trademarks of Kalio. All other trademarks or logos that appear on the Website or through the KalioCommerce Platform are the property of their respective owners. Kalio protects and defends vigorously its trade name, trademarks, designs, copyrights, and all other intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website or the KalioCommerce Platform. No person or institution has permission to copy, redistribute, reproduce, or republish the information on this website, in any form, without prior written consent from Kalio, Inc. © 2021 Kalio, Inc. All rights reserved.

CONFIDENTIALITY

Except as permitted herein or under applicable law, neither party shall use, copy, sell, transfer, publish, disclose, display or otherwise make any of the other party’s Confidential Information (as defined below) available to any third party without the prior written consent of the disclosing party. Each party shall hold the Confidential Information of the other party in confidence and shall not disclose or use such Confidential Information other than for the purposes contemplated by these Terms, and shall instruct their employees, agents and contractors to use the same care and discretion with respect to such Confidential Information, but in no event less than a reasonable degree of care, including the utilization of security devices or procedures designed to prevent unauthorized access to such materials. Each party shall instruct its employees, agents and contractors (i) of its confidentiality obligations hereunder, and (ii) not to attempt to circumvent any such security procedures and devices. Each party’s obligation under the preceding sentence may be satisfied by the use of its standard form of confidentiality agreement, if the same reasonably accomplishes the purposes here intended. All such Confidential Information shall be distributed only to persons having a need to know such information to perform their duties in conjunction with these Terms and who are bound by confidentiality obligations no less restrictive than those herein. A party may disclose the other party’s Confidential Information if required to do so by subpoena, court or regulatory order, or other legal process, provided the party notifies the disclosing party of its receipt of such process (to the extent legally permissible), and reasonably cooperates, at the disclosing party’s expense, with efforts of the disclosing party to prevent or limit disclosure in response to such process.

“Confidential Information” of a party means all confidential or proprietary information and documentation of such party, or of a third party to whom such party owes a duty of confidentiality, whether or not marked as such. A party’s Confidential Information includes, without limitation, any and all information about such party’s business, finances, marketing, plans, product roadmaps, systems, operations and technical environment. Confidential Information shall not include: (a) information which is or becomes publicly available (other than by the party having the obligation of confidentiality) without breach of these Terms; (b) information independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; (c) information lawfully received from a third party not under a confidentiality obligation to the disclosing party; and (d) information already in the possession of the receiving party without obligation of confidence at the time first disclosed by the disclosing party.

INDEMNITY

You agree to defend, indemnify and hold Kalio, its officers, directors, employees agents, subsidiaries, affiliates, partners and licensors (collectively, the “Kalio Entities”) harmless from and against any and all third-party claims, liabilities, damages, losses, demands, expenses or fees, including reasonable attorneys’ fees, arising out of or relating to; (i) your violation of these Terms; (ii) your violation of any of Kalio’s rights or the rights of another; (iii) your use of or access to the Website or the KalioCommerce Platform, including without limitation the creation or submission of Your Content or your modification of Kalio’s front-end code; or (iv) your violation of any applicable laws, rules or regulations in connection with your access to or use of the Website or the KalioCommerce Platform. Kalio hereby reserves the right to control the defense of any such claims or proceedings for which you are required to indemnify Kalio, and you agree to cooperate with such defense.

Kalio agrees to defend, indemnify and hold you harmless from and against any third-party claims, liabilities, damages, losses, demands, expenses or fees, including reasonable attorneys’ fees, arising out of or relating to an allegation that the Website and/or the KalioCommerce Platform, when used as contemplated herein, infringes or allegedly infringes the intellectual property rights of such third party. Kalio’s indemnification obligations are contingent upon you: (a) giving Kalio prompt written notice of each third party claim for which you are requesting Kalio’s indemnification, and Kalio’s receipt of such written notice within ten (10) days after you first become aware of the claim; (b) permitting Kalio to assume the defense and settlement of each such claim; (c) cooperating in the defense and settlement thereof, as Kalio may reasonably request and at Kalio’s own cost and expense; and (d) refraining from settling such claim unless Kalio has approved the terms thereof in writing. You may participate in the defense and settlement of any such claim at your own expense.

WARRANTIES AND DISCLAIMERS

Kalio hereby warrants that the Website and the KalioCommerce Platform, when used as permitted hereby, will not infringe the intellectual property rights of any third party. You understand that Kalio cannot and does not guarantee or warrant that the Website or the KalioCommerce Platform, or any files available for download from the internet or the Website or the KalioCommerce Platform, will be free of viruses or other harmful code. You are responsible for implementing sufficient procedures to satisfy your particular requirements for antivirus protection, accuracy of data and for maintaining a means external to our site for any reconstruction of any lost data.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR ACCESS TO AND USE OF THE WEBSITE AND THE KALIOCOMMERCE PLATFORM IS AT YOUR SOLE RISK. EXCEPT AS SET FORTH HEREIN, THE WEBSITE, THE KALIOCOMMERCE PLATFORM AND ALL PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. KALIO EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER KALIO NOR ANY PERSON ASSOCIATED WITH KALIO MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OF THE WEBSITE, THE KALIOCOMMERCE PLATFORM, ANY CONTENT OR MATERIALS MADE AVAILABLE IN CONNECTION THEREWITH, OR ANY PROFESSIONAL SERVICES.

WITHOUT LIMITING THE FOREGOING, KALIO MAKES NO WARRANTY OR REPRESENTATION THAT (i) THE WEBSITE, THE KALIOCOMMERCE PLATFORM OR THE PROFESSIONAL SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE WEBSITE AND THE KALIOCOMMERCE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE AND THE KALIOCOMMERCE PLATFORM WILL BE USEFUL, ACCURATE OR RELIABLE. KALIO WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR ACCESS TO OR USE OF THE WEBSITE AND THE KALIOCOMMERCE PLATFORM, OR ITEMS OBTAINED THROUGH THE WEBSITE AND THE KALIOCOMMERCE PLATFORM, INCLUDING WITHOUT LIMITATION ANY MATERIAL DOWNLOADED FROM IT, AVAILABLE THROUGH IT OR LINKED TO IT.

KALIO DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY CONTENT, PRODUCTS, SERVICES OR OTHER MATERIALS AVAILABLE ON OR LINKED THROUGH THE WEBSITE, THE KALIOCOMMERCE PLATFORM OR THE ACTIONS OF ANY THIRD PARTY OR USER.

NO ADVICE OR OTHER COMMUNICATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM KALIO OR THROUGH OR FROM THE WEBSITE OR THE KALIOCOMMERCE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT NEITHER KALIO NOR ANY OF THE OTHER KALIO ENTITIES WILL BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATING TO: (i) YOUR USE OF OR THE INABILITY TO ACCESS OR USE THE WEBSITE OR THE KALIOCOMMERCE PLATFORM; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR (iii) ANY OTHER MATTER RELATING TO THE WEBSITE, THE KALIOCOMMERCE PLATFORM OR THE PROFESSIONAL SERVICES, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THESE TERMS, WHETHER BASED ON A BREACH OF WARRANTY, BREACH OF CONTRACT, INFRINGEMENT, STATUTE, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE KALIO ENTITIES EXCEED THE AGGREGATE MONTHLY SUBSCRIPTION FEES PAID BY YOU TO KALIO DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KALIO AND YOU.

YOU AGREE TO WAIVE ANY LIABILITY ATTRIBUTABLE TO BREACHES OR DEFICIENCIES IN KALIO’S PERFORMANCE THAT ARE NOT BROUGHT TO KALIO’S ATTENTION BY WRITTEN NOTICE WITHIN ONE (1) MONTH AFTER BECOMING APPARENT TO YOU.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

FEEDBACK

You may, from time to time, submit or recommend to Kalio additional features, functionality, performance, comments, data, ideas, descriptions or other information (collectively, “Feedback”) that Kalio may subsequently incorporate into the Website, the KalioCommerce Platform or other Kalio products or services. Kalio and its successors and assigns may freely use, copy, disclose, sublicense, distribute, display and exploit any Feedback in connection with any of its products or services in any manner without any obligation, payment, royalty or restriction based on intellectual property rights, confidentiality or otherwise. You hereby: (i) grant Kalio and its successors and assigns a worldwide, non-exclusive, royalty-free, perpetual right and license to use and incorporate such Feedback into any Kalio product or service, including without limitation the Website and the KalioCommerce Platform; and (ii) acknowledge that any Kalio product or service incorporating such new features, functionality, or performance will be the sole and exclusive property of Kalio and all such Feedback will be free from any confidentiality restrictions that might otherwise be imposed on Kalio.

GOVERNING LAW

These Terms and the relationship between you and Kalio shall be governed by the laws of the State of California without regards to its conflict of law provisions. You and Kalio agree that any and all disputes, controversies and claims arising out of or relating to these Terms and/or your access to or use of the Website or the KalioCommerce Platform, shall be settled and determined exclusively by binding arbitration administered under the Rules of Arbitration by the American Arbitration Association in Santa Clara County, California, which is a mutually convenient and agreed upon venue. Any such dispute, claim or controversy shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any dispute or claim of any other party. By visiting the Website or the KalioCommerce Platform, you hereby waive all rights to trial in any action or proceeding instituted in connection with these Terms, the Website or the KalioCommerce Platform. The prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred.

PRIVACY & SECURITY

Kalio respects and honors the privacy and security of information that you may provide in connection with the Website or the KalioCommerce Platform. All information collected or otherwise obtained by Kalio in connection with the Website and the KalioCommerce Platform is subject to the Kalio Privacy Policy, located at https://www.kaliocommerce.com/about-kalio/privacy-policy. Please read our Privacy Policy for full disclosure of our firm commitment to privacy and security. You acknowledge and agree that by accessing the Website and/or using the KalioCommerce Platform, you are consenting to our privacy practices as described in the Kalio Privacy Policy, which is incorporated into these Terms by reference.

ENTIRE AGREEMENT

Except as expressly superseded by a written agreement between Kalio and you, these Terms and any executed statement(s) of work constitute the entire and exclusive understanding and agreement between Kalio and you regarding your use of the Website and the KalioCommerce Platform, and these Terms supersede and replace any and all prior or contemporaneous oral or written understandings or agreements between Kalio and you regarding the Website and the KalioCommerce Platform.

ASSIGNMENT

You may not assign or transfer these Terms, in whole or in part, by operation of law or otherwise, without Kalio’s prior written consent. Any attempt by you to assign or transfer without such consent will be null and of no effect. Kalio may assign or transfer these Terms, in whole or in part, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

NONSOLICITATION

During the term of parties’ relationship and for a period of one year thereafter, you shall not directly or indirectly solicit the services of any person who is then or was within the immediately preceding twelve (12) months an employee, contractor or consultant of Kalio, without the prior written consent of Kalio. During the agreed upon prohibited time period, you shall pay Kalio US$150,000 in liquidated damages for each Kalio employee, contractor or consultant that you hire as an employee or engage as an independent contractor without the prior written consent of Kalio.

MISCELLANEOUS

The waiver by either party of a breach or violation of any provision of these Terms shall not limit the party’s right to enforce the provision. Nor shall any waiver of a breach or violation of any provision constitute or operate as, or be construed as, a waiver of any subsequent breach of the same or other provisions of these Terms. In the event that any provision of these Terms is held to be unenforceable for any reason, the unenforceability thereof shall not affect the remainder of these Terms, which shall remain in full force and effect and enforceable as provided herein.

The parties agree to take such other steps and execute such other documents as may be necessary to consummate the transactions provided for in these Terms and to accomplish the purposes hereof.

These Terms are intended for the exclusive benefit of the parties and the parties’ respective affiliates, and the successors and permitted assigns of the foregoing, and nothing contained in these Terms shall be construed as creating any right or benefit in or to any other third party.

The relationship of the parties is that of independent contractors and nothing herein will be construed to create any partnership, joint venture or similar relationship.

You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms, including your access to or use of the Website and/or the KalioCommerce Platform, must be filed within one (1) year after such claim or cause of action arose or be forever barred.

All feedback, comments, requests for technical support and other communications relating to the Website or the KalioCommerce Platform should be directed to: marketing@kaliocommerce.com.

Cloud Platform and Customer Support Services Terms and Conditions

This Service Level Agreement (“SLA”) is a policy governing the use of the KalioCommerce Platform under the Terms.

KALIO’S RESPONSIBILITIES

Kalio’s product consists of the KalioCommerce Platform and Site Manager. Kalio is responsible for repairing defects in the KalioCommerce Platform and Site Manager. Your website has unique implementation code, utilizing the services of the KalioCommerce Platform, written specifically for your website. This includes integration changes, form handler changes, control changes and front-end code changes. You are responsible for changes and defects in your website’s unique implementation code.

SERVICE COMMITMENT

Kalio will use commercially reasonable efforts to make your Production Instance – the KalioCommerce end user transaction site (“KC site”) – available with a Monthly Uptime Percentage (defined below) of at least 99.9% during each Service Month.

KalioCommerce will maintain a first byte response time of 0.5 seconds or less on a designated reference page on your website(s). Maintaining performance on website pages over time will be dependent on your adherence to Kalio’s web performance best practices. Kalio will monitor a reference page approved by Kalio and you. Kalio performs speed and load tests prior to launch of a new website. It is your responsibility to maintain appropriate designs and Front-End coding practices to preserve desired performance levels over time. Kalio Professional Services offers tune-up services to review Front-End code and design and make recommendations for improving performance.

UPDATE REQUIREMENT

Service commitments are contingent on you updating the version of the KalioCommerce Platform on production website(s) to the latest released version at least once every twelve (12) months. Kalio makes software updates available on a periodic basis under the Monthly Subscription Fee. You will be charged for installation of the software on test and production websites on a time and materials basis. New functionality available in each software release may require additional implementation work to expose the functionality on your Commerce website. This can be completed by your team or by contracting with Kalio Professional Services.

PCI COMPLIANCE REQUIREMENT

Kalio undergoes annual 3rd party assessments to certify PCI compliance as well as periodic scans to expose potential vulnerabilities. New vulnerabilities will appear over time and must be remedied in a timely manner. Kalio will use reasonable commercial efforts to maintain PCI compliance for the software platform and delivery infrastructure. Some vulnerabilities may appear in your website(s) based on changes to the Front-End Code, whether modified by you or by Kalio, or new vulnerabilities that arise for existing Front-End Code. Kalio will use reasonable commercial efforts to notify you when these appear. You are responsible for the remediation of these vulnerabilities. Kalio Professional Services may be contracted to provide assistance if desired. You hereby agree to defend, indemnify and hold Kalio harmless from and against any claims, suits, damages, payments, or liabilities of any kind whatsoever that Kalio may incur that are attributable, in whole or in part, to the failure of modifications made by or on behalf of you to Kalio’s Front-End code to conform to PCI compliance requirements.

KALIO EXCLUSIONS

The Service Commitment does not apply to any unavailability or any other KC site performance issues: (i) caused by factors outside of Kalio’s reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the Kalio data center; (ii) that result from any of your actions or inactions, or performed by Kalio personnel at your specific instruction; (iii) that result from Front-End Code written by you or your contractors without explicit review and acceptance by Kalio; (iv) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within Kalio’s direct control); (v) scheduled downtime and maintenance windows (currently scheduled for Tuesday morning from 3:30 to 5:30 AM east coast time); (vi) third party intrusions such as a Distributed Denial of Service attack and similar attacks; (vii) scheduled downtime for software releases; (viii) arising from suspension and termination of your right to use the KC site in accordance with the Terms (collectively, the “Kalio Exclusions”).

BASIC CUSTOMER SUPPORT SERVICES

Kalio customer support includes both KalioCommerce, Kalio’s cloud-based e-commerce platform, and your e-commerce website implementation on KalioCommerce. Basic Support for KalioCommerce is included in the monthly fees whereas support for your specific implementation is provided on a Time & Materials fee basis.

The following are included in your monthly fee:

  • Facilities for bug tracking, escalation of problems for priority attention.
  • Assistance with troubleshooting to diagnose and fix errors in KalioCommerce.

Kalio shall have no obligation to fix or support (i) errors attributed to you or your contractors; (ii) problems caused by your negligence, misuse, or customer hardware or software malfunction or incompatibility; or (iii) use of the Software inconsistent with Kalio’s instructions.

Kalio Support Services do not include:

  • Assistance in the development or debugging of your system, including the operating system and support tools.
  • Information and assistance on technical issues related to the installation, administration, and use of enabling technologies such as on-site databases, computer networks, and communications not directly under Kalio control. Kalio Professional Services can be contacted to help with such activities for additional fees.
  • Assistance with the installation and configuration of hardware on your side including, but not limited to computers, hard disks, networks, and printers. Kalio Professional Services can be contacted to help with such activities for additional fees.
  • Any customized configuration or development services outside of Kalio’s core obligation to provide commerce applications to its overall user base. Any necessary custom configurations and development can be done by Kalio Professional Services (see below) on a time and materials basis and/or Kalio can provide paid training as necessary for Kalio customers to work with Kalio applications.

Depending upon the nature and complexity of any problem, Kalio may refer you to Kalio Professional Services, and Kalio may, in its discretion, agree to provide such assistance for a fee consistent with Kalio’s then-current pricing for such professional services and defined in an executed statement of work.

You shall provide commercially reasonable cooperation and full information to Kalio with respect to the furnishing of Support Services under this Agreement.

You shall designate not more than two support contacts who are authorized to submit Software related problems. You may contact Kalio via the Kalio ticketing system or utilize the Support telephone number.

Kalio shall not be liable for any failure or delay in performance under these Support Terms due to causes beyond its reasonable control. Any illegal or unenforceable provision shall be severed from these Support Terms. You agree that any information received pursuant to these Support Terms shall be deemed to be subject to the non-disclosure obligations set forth in the Terms. Your obligation of payment of moneys due under these Support Terms shall survive termination of these Support Terms or the Terms.

PROFESSIONAL SERVICES & WORK REQUESTS

You may request custom configurations, development or training, with respect to the Kalio application. These will be scoped and delivered by Kalio Professional Services as described in one or more statements of work. Work will be performed on a time and materials basis at the then-current Professional Services rates. Work will only proceed after approval of the statement of work by an authorized representative of yours. Kalio will provide sixty (60) days’ advance notice for rate changes.

WORK REQUESTS

Assistance with website changes may be requested as needed by submitting a request in Kalio’s customer portal from an authorized representative of yours. Upon Kalio’s confirmation that the work request does not require a statement of work, Kalio will initiate work based on the written authorization and communicate regularly to assist you in managing costs.