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TERMS OF SERVICE

Effective Date: 21 April, 2023

These Terms of Use (“Terms”) describe the terms under which Zero Kelvin Inc (“ZeroK” “Us”, “We”, “Our”) provides a subscriber (“You”, “Your”, “Yourself”) access to and use of Our Services. By accessing and/or using Our Service,

 

a. You agree to be bound by these Terms and acknowledge having read the Privacy Policy located here 

https://www.zerok.ai/privacy-policy

b. You warrant to Us that You are aged 18 years or above and are competent to enter into this agreement.

c. That, in the event You are entering into these Terms on behalf of any entity/company or its group, You possess the requisite authority to bind such entities, company, or its groups to these Terms.You and ZeroK shall be hereinafter collectively be referred to as “Parties” and individually as “Party”.

DEFINITIONS

Account means any accounts or instances created by You or on Your behalf for access and use of the Services.‍
 

API means the application programming interfaces developed, enabled by or licensed to ZeroK that permits certain functionalities provided by the Services.‍
 

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 Services by You through Your Account in connection with Your use of the Services.‍
 

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. 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. ‍
 

Documentation means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services provided or made available by ZeroK to You or Your Users through the Services or otherwise.‍‍
 

End User: means any person or entity other than You or Your Users with whom You interact using the Service(s).‍

Order Form means any service order form specifying the Services provided, particular features and functionalities in the Services that You wish to avail.‍
 

Personal Data means any information relating to an identified or identifiable natural person that is submitted by You to the Services as part of Customer Data.‍
 

Process means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, 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.‍

Services means the cloud-native proprietary Kubernetes Observability platform of ZeroK and any new services that ZeroK may introduce as a Service to which You may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, the API, Software and any Documentation. ‍
 

Software means any software provided by ZeroK (either by download or access through the internet) that allows You to use any functionality in connection with the Service(s).‍
 

Subscription Charges means all charges associated with Your Account and use of the Services.‍
 

Subscription Plan means the pricing plan and any limitations for the Services that the You have subscribed to.‍
 

Subscription Term means the period during which You have agreed to subscribe to the Services as specified in the relevant Order Form or as mentioned in a relevant Subscription Plan.‍
 

Third-Party Services shall mean third-party application(s) or service(s) integrating with the Services through APIs or otherwise enabled through the Services.‍
 

User means a designated user within the Services, including an Account administrator, employee, shareholder, auditor, lawyer, founder and other designated users.
 

Website(s) shall mean the websites owned and operated by Zero Kelvin Inc including zerok.ai
 

YOUR RIGHTS

3.Your Obligations

3.1.Your Account: Your access and use of the Service(s) is restricted to the specified number of individual Users mentioned in the relevant Order Form executed between Yourself and ZeroK. Each User shall be identified using unique login information such as usernames and passwords (“User Login”) and such User Login shall be used only by one individual.

3.2.Acceptable Use: You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third-party, other than Users in furtherance of your internal business purposes as expressly permitted by these Terms; (b) modify, adapt, or hack the Services or otherwise attempt to gain or gain unauthorized access to the Services or related systems or networks; (c) use the Services to Process any Personal Data; (d) violate any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by ZeroK; (e) use the Services to store or process any content that infringes upon any person’s intellectual property rights or is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; or (f) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Services (through use of manual or automated means);

3.3.You represent and warrant to ZeroK that You own or have the necessary rights to transmit the Customer Data to ZeroK and that doing so does not violate any applicable law, proprietary or privacy rights.

4.Services

4.1.Any enhancements, new features or updates (“Updates”) to the Services are also subject to these Terms and ZeroK reserves the right to deploy Updates at any time.

4.2.The Services may temporarily be unavailable due to scheduled downtime for upgrades and maintenance in which case ZeroK shall use commercially reasonable endeavours to notify You in advance.

4.3.Notwithstanding anything to the contrary contained elsewhere, ZeroK shall not be liable for unavailability of the Services caused by circumstances beyond ZeroK’s reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond ZeroK’s reasonable control (including, without limitation, inability to access the internet), or acts undertaken by third-parties, including without limitation, distributed denial of service attacks.

5.Intellectual Property Rights

5.1.Except for the rights granted to You under clause 2, all rights, title and interest in and to all intellectual property and/or proprietary rights, title and interest in or related to the Services, including patents, inventions, copyrights, trademarks, domain names, trade secrets or know-how shall belong to and remain exclusively with ZeroK.

5.2.You own the rights to the Customer Data that You provide to ZeroK. ZeroK does not claim ownership over such Customer Data. ZeroK shall have a right and license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback it receives from You.

5.3.ZeroK reserves its rights to re-use any and all techniques and know-how gathered by ZeroK while providing the Services to You.

5.4.All rights not expressly provided to You  herein are reserved.

6.Third party services

You acknowledge and agree that Your use of Third-Party Services will be subject to the terms and conditions and privacy policies of such third-party and that ZeroK shall not be liable for Your enablement, access or use of such Third-Party Services, including for processing of Customer Data 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.

7.Charges and Payments

7.1.Subscription Charges: Unless otherwise mentioned in an Order Form, the Subscription Charges are due in full and payable in advance, in accordance with clause 7.2, when You subscribe to the Services. The Subscription Charges shall be specified on Our Website(s) or in an Order Form.

7.2.Payment: You hereby authorize ZeroK or ZeroK’s authorized agents, as applicable, to bill You upon Your subscription to the Services (and any renewal thereof). Unless otherwise stated in an Order Form, Your payment is due within thirty (30) days of ZeroK’s invoice date.

7.3.Refunds: Unless otherwise specified in these Terms, all Subscription Charges are non-refundable. No refunds shall be issued for partial use or non-use of the Services by You.

7.4.Late Payments/Non-payment of Subscription Charges: ZeroK will notify You if ZeroK does not receive payment towards the Subscription Charges within the due date for Your Account. ZeroK must receive payments within a maximum of ten (10) days from the date of ZeroK’s notice. If ZeroK does not receive payment within the foregoing time period, in addition to its right to other remedies available under law, ZeroK may (i) charge an interest for late payment @ 1.5% per month and/or; (ii) suspend Your access to and use of the Services until ZeroK receives Your payment towards the Subscription Charges as specified herein and/or; (iii) terminate Your Account.‍

7.5.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”).

8.Terms, Termination, Suspension

8.1.The Subscription Term shall be as set forth in the relevant Order Form.‍

8.2.Termination by You: You may terminate your Account and subscription to the Services at any time, but will remain liable for all Subscription Charges for the Subscription Term.  Unless Your Account and subscription to the Services is terminated, Your subscription to the Services will renew for a Subscription Term equivalent in length to the then expiring Subscription Term at ZeroK’s then prevailing Subscription Charges.

8.3.Termination and Suspension by ZeroK: In addition to suspension for late payment or non-payment of Subscription Charges, ZeroK may in its discretion, suspend or terminate Your access to and use of the Your Account or the Services if You are in violation of the terms of these Terms. ZeroK will notify You of activities that violate these Terms and provide You with a period of thirty (30) days to cure or cease such activities (“Cure Period”). If You do not cure or cease such activities within the said Cure Period or if ZeroK believes that Your breach of these Terms cannot be cured, Your Account shall be terminated immediately. Further, ZeroK also reserves the right to terminate Your Account at any time by written notice due to business reasons which shall include discontinuation of the Services.

8.4.Termination for Insolvency: Notwithstanding anything contained herein, either Party may terminate these Terms 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.

8.5.Effect of Terminating Your Account: Following the termination of Your Account either by You or ZeroK, You may request us to reinstate your Account within thirty (30) days of effective termination of Your Account (“Data Retention Period”). Beyond the Data Retention Period, ZeroK reserves the right to delete all the Customer Data in its possession.

9.Confidentiality

9.1.Confidentiality obligations: Each of the Parties will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each of the Parties protects its own Confidential Information, and in any event, no less than reasonable care. Except as otherwise expressly permitted under these Terms, each of the Parties may use the other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under these Terms and shall disclose such Confidential Information solely to those of its respective employees, representatives and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information. The provisions of this sub-section shall supersede any non-disclosure agreement by and between the Parties entered prior to these Terms that would purport to address the confidentiality of any Confidential Information and such agreement shall have no further force or effect with respect to the Confidential Information.

10.Data protection and privacy

10.1.You understand and acknowledge that, in connection with the use of the Services, ZeroK may Process any Personal Data in accordance with these Terms and ZeroK’s Privacy Policy.

10.2.ZeroK may Process Customer Data to provide, maintain and improve the Services, or prevent or address any technical problems, or at Your request in connection with support requests.

10.3.ZeroK may perform analytics on Customer Data to improve, enhance, support and operate the Services and compile statistical reports and record insights.

10.4.You shall not disclose (and shall not permit any individual to disclose) any Sensitive Personal Information to Us for Processing.

10.5.We shall ensure that any person We authorize to Process Customer Data shall protect the Customer Data in accordance with Our confidentiality obligations under these Terms.

10.6.You acknowledge and agree that We may access or disclose information about You, Your Account, Users, including Customer Data in order to (a) comply with the law or respond to lawful requests or legal process; or (b) prevent any infringement of group companies’ or Our customers’ proprietary rights. Further, at Our sole discretion, any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities.

10.7.We shall use appropriate technical and organizational measures to protect the Customer Data as specified in applicable laws. The measures used are designed to provide a level of security appropriate to the risk of Processing the Customer Data.

10.8.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.We shall reasonably assist You, at Your expense, in meeting Your obligations under applicable data protection laws.

11.Disclaimer of warranties

11.1.THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR NON-INFRINGEMENT, ARE HEREBY EXCLUDED.

11.2.YOU ACKNOWLEDGE THAT ZEROK DOES NOT WARRANT THAT THE ACCESS TO THE SERVICE, WHICH IS PROVIDED OVER INTERNET AND VARIOUS TELECOMMUNICATIONS NETWORKS, ALL OF WHICH ARE BEYOND ZEROK’S CONTROL, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE.

12.Limitation of liabilities

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS 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, 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, EXCEPT PAYMENT OBLIGATIONS OF YOU EVEN IF EITHER 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, ZEROK’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICES, WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE SUBSCRIPTION CHARGES PAID FOR THE SERVICES PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.

13.Indemnification

13.1.Indemnification by You: You will indemnify and hold ZeroK harmless against any claim brought by a third-party against ZeroK, and its respective employees, officers, directors and agents arising from Your acts or omissions in connection with clause 3 of these Terms provided that (a) ZeroK promptly notifies You of the threat or notice of such a claim, (b) You have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) ZeroK fully cooperates with You in connection therewith. You will have no obligation or liability with respect to any such claim arising out of the gross negligence or wilful misconduct of ZeroK.

14.Miscellaneous

14.1.Assignment: Any rights or obligations hereunder may be assigned by ZeroK without the prior written consent of the other Party. However, You shall not assign any rights or obligations hereunder without the prior written consent of ZeroK. These Terms binds, and inures to the benefit of, the Parties and their respective successors and permitted assigns.

14.2.Entire Agreement: These Terms together with any supplementary terms, constitute the entire agreement, and supersede any and all prior agreements between You and ZeroK with regard to the subject matter hereof. These Terms shall prevail over the terms or conditions in any purchase order or other order documentation You or any entity that You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof.  In case of a conflict between these Terms and an Order Form, these Terms shall prevail. In case of a conflict between two Order Forms, the Order Form later in date shall prevail.

14.3.Amendment: We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You of any material revisions not less than ten (10) days prior to the effective date of any amendments to these Terms and Your continued use of the Services following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. You can review the most current version of the Terms at any time by visiting this page.

14.4.Severability; No Waiver: If any provision in these Terms 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 these Terms shall remain in effect. ZeroK’s non-exercise of any right under any provision of these Terms does not constitute a waiver of that right or provision of these Terms.

14.5.Relationship of the Parties: The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.

14.6.Survival: All clauses which, by their nature are intended to survive, including without limitation clauses 1 (Definitions), 5 (Intellectual Property Rights), 7 (Charges and Payment), 9 (Confidentiality), 11 (Disclaimer of Warranties), 12 (Limitation of Liability), 13 (Indemnification), 14 (Miscellaneous) shall survive any termination of ZeroK’s agreement with respect to use of the Services by You. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

14.7.Notices and Consent to Electronic Communications: All notices to be provided by ZeroK to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or to the contact mailing address provided by You on any Order Form while subscribing to the Services; or (ii) electronic mail to the e-mail address provided for Your Account. ZeroK’s address for a notice to ZeroK in writing by Courier is 1207, Delaware Avenue, Suite 1059, Wilmington, 19806, Delaware with a CC to legal@zerok.ai for 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.

14.8.Publicity Rights: You hereby grant ZeroK the right to identify Yourself as ZeroK’s customer on ZeroK’s websites and/or marketing collateral and to include Your use of the Services in case studies.

14.9.Governing Law and Dispute Resolution: These Terms shall be governed by the laws of State of Delaware, USA without regard to conflict of law principles. Any disputes or differences arising under, relating to or connected with these Terms shall be resolved by mediation first, failing which they shall be resolved by final and binding arbitration administered by the American Arbitration Association, in accordance with its commercial arbitration rules for the time being in force. The arbitration shall be presided by a sole arbitrator appointed mutually by the Parties. The Parties agree that the courts situated in the State of Delaware shall have exclusive jurisdiction over any dispute that arises from these Terms.

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