KEBOOLA CONNECTION PLATFORM ACCESS
Last Updated: November 10th, 2017
This Master Software Subscription Agreement (the “Agreement”) is entered into by and between Keboola and the Client, as such parties are identified and defined in a fully executed Keboola Order Form (“Order Form”), as of the Effective Date stated on the first Order Form entered into by the parties.
IN CONSIDERATION of the mutual covenants, terms, and conditions set forth below in this Agreement (which includes any Order Form), the adequacy of which consideration is accepted and acknowledged by the parties, the parties agree as follows:
1.1. “Affiliate” means any affiliate or entity within the Keboola group of companies, which has the legal right to use the “Keboola” trade name and trademark, and provided that such affiliate or entity has been certified by the controlling or managing principals of the Keboola group of companies as an Affiliate pursuant to an “Affiliate Certificate”.
1.2. “App Store” means Keboola’s Data App Store, which may be accessed through the user interface of the Keboola Connection software, through which persons may purchase and access apps produced by Keboola, Affiliates or third parties.
1.3. “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations, or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory, or judicial authority.
1.4. “Keboola Apps” means software applications which may be accessed or purchased through the App Store, and which may be integrated with KBC and related services, and includes apps produced by Keboola, Affiliates, and third parties.
1.5. “Keboola Authorized Reseller” means a party authorized by Keboola, pursuant to a separate Authorized Reseller agreement, and as evidenced by an Authorized Reseller certificate issued by Keboola, to market and sell access to the Keboola Connection software on behalf of Keboola, and/or on behalf of an Affiliate. Such Keboola Authorized Reseller is authorized to collect Fees for the Services and remit the Fees to Keboola and/or an Affiliate as the case may be.
1.6. “Keboola Connection” or “KBC” means Keboola’s subscription-based software-as-a-service data warehousing solution and ETL platform that facilitates the extraction, transformation, loading and storage of data from various sources, including the App Store and Keboola Apps accessible through the App Store, and is accessible at https://connection.keboola.com or subdomains of that URL.
1.7. “Personal Information” means any and all personally identifiable information of the Client, including without limitation, the Client’s accounts, account numbers, names, addresses, social security numbers, or any information derived therefrom.
1.8. “Privacy Laws” means any applicable privacy laws.
1.9. “Terms Of Service” means the rules of conduct governing the use of KBC, as posted online at https://www.keboola.com/terms-and-conditions and as amended from time to time.
1.10. “Third Party Materials” means any code, libraries, programs, software, documentation, content or other intellectual property of any type, whether freely available to third parties or not, which was developed by a third party and for which Keboola has a license or right (including rights under digital commons) to use such property in connection with rendering the Services under this Agreement.
1.11. All references to currency amounts shall be in United States Dollars unless otherwise stated in an Order Form.
1.12. The use of headings is for convenience and reference only and shall not affect the construction or interpretation of this Agreement.
2.1. Description of Services. Subject to the terms and conditions of this Agreement, in exchange for the Fees (defined in Section 3.1), Keboola shall provide the Client, or shall cause to be provided to the Client:
(collectively the “Services”).
2.2. Order Form. The parties may execute one or more Order Forms referencing this Agreement further describing the Services, and the terms and conditions of this Agreement shall be incorporated in such Order Forms by reference.
2.3. Keboola Terms of Service. At the direction of the Client, Keboola or Affiliates shall provide Services directly to the Client or to customers of the Client on the Client’s behalf. The Client agrees and acknowledges that access to KBC shall be subject to and conditional on a prospective KBC user, whether that prospective user is an employee of the Client or not, accepting Keboola’s KBC Terms Of Service.
2.4. Access to App Store. Clients may access the App Store through functionality provided by the KBC software and use the same to obtain access to Keboola Apps. For greater certainty, without limiting the generality of the foregoing, the App Store forms part of the KBC software and the Services and are subject to this Agreement. Access to certain Keboola Apps may require the payment of additional fees and the Client agrees to pay such fees in addition to the fees referenced in section 3 of this Agreement in order to access such apps. Certain Keboola Apps may also be the property of third parties and subject to third-party terms and conditions in addition to those set out in this Agreement. The Client’s use of KBC and related Services integrated with third-party Keboola Apps shall be pursuant to the following:
2.5. Service Restrictions. Client shall only use the Services for the Purpose (as defined an Order Form), and hereby accepts and acknowledges that any other use of the Services is prohibited unless expressly pre-approved by Keboola in writing.
3.1. In exchange for Keboola’s obligations under this Agreement, Client shall pay Keboola the fees set forth in the applicable Order Form (the “Fees”).
3.2. The Client may, from time to time, subscribe for or purchase access to certain Keboola Apps. The Client hereby acknowledges and agrees that each Keboola App may be governed by separate opt-in terms and conditions (“Application Terms”), and that this Agreement only governs the Client’s use of such Keboola App in conjunction with and subject to the applicable Application Terms with regard to the subject Keboola App. Any fees payable by Client in connection with the Keboola Apps may be invoiced by Keboola to the Client separately from, or together with, any invoice for the Fees. For certainty, fees charged for Client’s use of Keboola Apps are in addition to the Fees.
3.3. Subject to applicable law, all payments are due in U.S. Dollars, unless otherwise specified in the Order Form, within thirty (30) days of Client’s receipt of an undisputed invoice. Client shall reimburse Keboola for any expenses specified as recoverable expenses in the applicable Order Form. Fees under an Order Form are subject to change if Client requires Keboola to modify Services according to Client requested changes to specifications or features of Services.
3.4. Client hereby acknowledges and agrees that Keboola may engage Affiliates or Keboola Authorised Resellers to provide any part or all of the Services, and that Keboola may therefore permit such Affiliates or Keboola Authorised Resellers to invoice Client and accept Fees on Keboola’s behalf. Keboola shall provide prior written notice to Client consenting to such practice, if applicable, and if so authorized, payment of such Fees to such Affiliate or Keboola Authorized Reseller shall be sufficient to discharge Client’s obligations relating to such payment and shall constitute consideration, in addition to other consideration, under this Agreement.
4.1. Keboola hereby represents and warrants to Client that:
4.2. Each party represents and warrants to the other party as follows:
5.1. KBC, including its constituent elements, is protected by copyright, trade secret, and other intellectual property laws. Neither this Agreement, nor any Order Form, grants Client any Intellectual Property Rights in or to KBC or any of its constituent components. Client is only granted the personal, limited, nonexclusive, non-transferable, non-sub-licensable right to access and use KBC as a service and only pursuant to the terms and conditions, and only for the purposes, expressly described in this Agreement and applicable Order Forms.
6.1. In this Agreement:
6.2. Data Usage by Keboola. Client hereby grants Keboola and Affiliates a worldwide, limited, revocable, fully paid license to access, copy, and use the Client Data for the purpose of providing the Services during the term, subject to the terms and conditions of this Agreement and subject to the following further restrictions: other than in connection with providing the Services, Client Data may not be: (a) used by Keboola or Affiliates in any way; (b) disclosed, sold, assigned, leased, or otherwise provided to third parties without the expressed prior written consent of Client; (c) commercially (or otherwise) exploited by or on behalf of Keboola or Affiliates, or any vendor of Keboola or Affiliates.
6.3. Data Ownership. Keboola agrees that all Client Data is the exclusive property of Client and/or Individuals and Keboola hereby waives any interest, title, lien, or right to any such Client Data (except for the license granted in section 6.2 above). Client possesses and retains all right, title, and interest in and to Client Data, and Keboola’s use and possession thereof is solely as Client’s service provider pursuant to the terms of this Agreement.
6.4. Ownership of Metadata. Client agrees that Metadata is exclusive property of Keboola and Affiliates, and client has no claim over or ownership interest in any Metadata. Keboola and Affiliates may use Metadata for any purpose it may choose and disclose such data to third parties in its exclusive discretion.
6.5. Data Security. Keboola shall manage Client Data, and cause Client Data to be managed, in accordance with data management and security standards set out in Keboola’s Security White Paper, as amended from time to time, available here
6.6. Access, Use, & Legal Compulsion. Unless it receives Client’s prior written consent, Keboola and Affiliates: (i) will not access or use Client Data other than as necessary to facilitate the Services; and (ii) will not give any third party access to Client Data. Notwithstanding the foregoing, Keboola and Affiliates may disclose Client Data as required by applicable law or by proper legal or governmental authority. Keboola will give Client prompt notice of any such legal or governmental demand and reasonably cooperate with Client in any effort to seek a protective order or otherwise to contest such required disclosure at Client’s sole expense.
6.7. Security of Client Data. Notwithstanding anything to the contrary contained in this Agreement and in addition to and not in lieu of any other provisions in this Agreement regarding confidentiality and data security the following shall apply:
6.7.1. Permitted Use of Client Data. Keboola will only use and will cause all Affiliates and Keboola employees, agents, subcontractors and representatives to only use Client Data for purposes of performing the Services. Keboola shall follow Client instructions when processing Client Data and will not use Client Data other than as authorized by this Agreement. Client Data which Keboola downloads (with permission granted by Client during component configuration) from Google, Facebook, Twitter or other third party APIs (“Third Party Data”) are stored and handled the same as Client Data under this Agreement. Third Party Data will not be shared anywhere (it remains stored securely on Keboola systems) until Client decides to share that data (for example, by configuring Data writer to Client or third party systems). Client can delete all Third Party Data and data source configurations from Keboola storage anytime. This section shall be read along side with and be subject to the provisions of sections 6.9 (Retention and Deletion) and 6.10 (Compliance with Law) of this Agreement.
6.7.2. Safeguarding Client Data. Keboola agrees to take commercially reasonable efforts to:
188.8.131.52. Implement appropriate measures designed to ensure the security and confidentiality of Client Data including implementing commercially reasonable technical and organizational safety measures to prevent accidental or wrongful destruction, loss or deterioration of Client Data;
184.108.40.206. Protect Client Data against any anticipated threats or hazards to the security or integrity of such information;
220.127.116.11. Protect against unauthorized access to or use of Client Data that could result in substantial harm or inconvenience to any Individual;
18.104.22.168. Cause all Keboola agents, representatives, subcontractors, or any other party to whom Keboola may provide access to or to whom Keboola may disclose Client Data to implement appropriate measures designed to meet the objectives set forth in this section 6.5; and
22.214.171.124. Immediately notify Client in writing in the event of any unauthorized disclosure of or access to Client Data, or security breach thereof upon learning of same (such as through loss, or theft of computers, theft of Client Data, or system security failure).
6.8. Confidentiality and Ownership Agreements. All Affiliates and Keboola employees and consultants performing work relating to the provision of the Services shall execute a confidentiality agreement which is materially the same in substance as the confidentiality agreements entered into between the parties in this Agreement.
6.9. Retention & Deletion. Subject to Privacy Laws, Keboola and Affiliates may retain any Client Data in its possession until Erased (as defined below) to the extent such Client Data is part of a data archive created by Keboola and/or Affiliates in connection with Keboola’s standard document retention procedures carried out in connection with provision of Services. Subject to the foregoing, if retaining Client Data, Keboola and Affiliates shall Erase all copies of Client Data: (i) within thirty (30) days after Client’s written request; or (ii) within thirty (30) days after termination of this Agreement, after which Keboola and Affiliates shall have no obligation to maintain or provide Client with copies of Client Data. “Erase” refers to the irretrievable destruction of data in compliance with Privacy Laws and in accordance with industry standards.
6.10. Compliance with Law & Policy. Keboola will comply with all applicable laws and regulations governing the handling of Client Data including without limitation the Privacy Laws.
6.11. Leaks. Keboola will promptly notify Client of any actual or potential exposure or misappropriation of Client Data (any “Leak”) that comes to Keboola’s attention. Keboola will cooperate with Client and with law enforcement authorities in investigating any such Leak, at Keboola’s expense, except to the extent that the Leak was caused by Client. Keboola will likewise cooperate with Client and with law enforcement agencies in any effort to notify injured or potentially injured parties except to the extent that Client caused the Leak.
6.12. Injunction. Keboola agrees that violation of the provisions of this Section 6 might cause Client irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Client will be entitled to injunctive relief against such breach or threatened breach on proving actual or potential damage.
6.13. Disclaimer. Keboola and Affiliates may, but are under no obligation to, review Client activity, conduct and Client Data for compliance with this Agreement. Keboola hereby disclaims any and all liability associated with the content of Client Data, and its use or disclosure on KBC.
6.14. App's use of information received, and App's transfer of information to any other app, from Google APIs will adhere to Google's Limited Use Requirements.
7.1. Termination. This Agreement remains in effect until terminated in accordance with the provisions of an Order Form and this Section 7. Either party may terminate this Agreement if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter). In addition, (i) either party may terminate this Agreement at any time when there is no Order Form in effect upon notice to the other party; and (ii) the Client may terminate this Agreement with thirty (30) days written notice to Keboola in the event that Keboola gives notice of a Material Change amendment pursuant to Section 14.3, provided that the Client give such termination notice within thirty (30) days from the date notice is given for the applicable Material Change. Any obligation of Client to pay fees due and owing pursuant to this Agreement (which includes Fees) and any applicable Order Form shall survive termination of this Agreement or any applicable Order Form. Sections 4 (Representations and Warranties), 5 (Ownership of Services), 6 (Data Management), 8 (Independent Contractor), 9 (Limitation of Liability), 10 (Confidential Information), 11 (Access to Client Systems), 12 (Indemnification), 13 (General) and the provisions of this Section 7 will survive any expiration or termination of this Agreement or any Order Form. Termination of this Agreement shall automatically terminate all Order Form’s outstanding as at the time of Termination. Termination of an Order Form shall not serve to terminate this Agreement.
7.2. Suspension. In the event that Keboola suspects Client activity that is inconsistent with this Agreement or the Terms of Service, Keboola may, in its sole discretion and with notice to the Client, temporarily lock or suspend Client’s access to KBC and concurrently suspend Client’s right to any other part or whole of the Services (“Suspension”). Suspension may persist until Keboola, in its sole discretion, completes an investigation into the suspicious activity. Client agrees to cooperate with any and all reasonable requests made by Keboola or its Affiliate during a Suspension for the purpose of assisting Keboola or its Affiliate with such investigation. During any Suspension, Fees applicable to the suspended Services shall also suspend until Keboola determines, with notice to the Client, that the investigation is complete and that the Suspension is no longer in effect. For certainty, Suspension shall not terminate this Agreement.
8.1. Keboola shall be solely responsible and liable for any employment-related taxes, insurance premiums or other employment benefits respecting Keboola’s employees. Neither Keboola nor any of Keboola’s employees, agents or subcontractors shall be eligible for any benefits (including, without limitation, stock options, health insurance or retirement benefits) normally provided by Client to its employees. Keboola shall provide the Services to the Client in the capacity of independent contractor, and not as an employee, partner, agent or joint venture partner. Neither party shall be responsible for the payment of any duties or taxes imposed on the income or profits of the other party. Neither party shall make any commitment, by contract or otherwise, binding upon the other or represent that it has any authority to do so.
9.1. In no event shall either party be liable for any loss of use, interruption of business, lost profits, or any indirect, special, incidental, or consequential damages of any kind regardless of the form of action whether in contract, tort (including negligence), strict product liability, or otherwise, even if it has been advised of the possibility of such damages.
9.2. Except for a breach of section 10 (Confidential Information) and section 12 (Indemnification), or for a party’s liability arising from (a) death, bodily injury or property damage caused by the other party; (b) any willful misconduct, or fraud of the other party, in no event shall either party’s aggregate liability under this Agreement exceed the Fees paid to Keboola during the twelve (12) month period preceding any cause of action.
10.1. “Confidential Information” means any confidential or proprietary information, source code, software tools, designs, schematics, plans, works in process, future developments, scientific, engineering, manufacturing, marketing or business plans or financial or personnel matter relating to either party, its present or future products, sales, suppliers, web site visitors, web site users, employees, investors, or businesses, disclosed by one party to the other party, whether in oral, written, graphic or electronic form, and whose confidential or proprietary nature can be reasonably assumed at the time of such disclosure.
10.2. Non-Disclosure. Both parties agree that, except as directed by the counterparty, they will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever, or use any Confidential Information for any purpose whatsoever, unless expressly contemplated and authorized herein, and that upon the termination of this Agreement they will either destroy or turn over to the counterparty all documents, papers, and other matter in its possession or control that relate to the counterparty if so requested. Both parties further agree to bind its employees and subcontractors to the terms and conditions of substantially as protective as this Section 10. Any of the parties shall be entitled to disclose the Confidential Information if summoned by court to do so provided that a party shall immediately inform the other in writing to permit intervention. Any of the parties shall be also entitled to disclose the Confidential Information to their respective external advisors bound by professional confidentiality (such as auditors or lawyers). The receiving party’s obligations will terminate if the receiving party can demonstrate that: (i) the Confidential Information was in the public domain at the time it was communicated to the receiving party by the disclosing party; or (ii) it entered the public domain after the time it was communicated to the receiving party by the disclosing party through no fault of the receiving party; or (iii) it was rightfully in the receiving party’s possession free of any obligation of confidence at the time it was communicated to the receiving party by the disclosing party; or (iv) it was developed by the receiving party independently of and without reference to any information communicated to the receiving party by the disclosing party.
11.1. Access, if any, to any Client software, hardware or systems utilized or made available by Client (“Client Systems”) is granted solely to allow Keboola and Affiliates to provide the Services, including access to the KBC software and any associated data processing, handling and maintenance services, and is limited to those specific Client Systems, time periods, and personnel as are necessary to provide the Services or are otherwise separately designated by Client in writing from time-to-time. By using the Services the Client grants Keboola and Affiliates the right to access Client Systems in accordance with the terms of this section 11.1. In connection with access to Client Systems, Keboola and Affiliates shall comply with all business control and information protection policies, standards, and guidelines as may be provided by Client, acting reasonably. Keboola and Affiliates shall not use or access Client Systems during other time periods or through individuals not authorized under this Agreement. Any other use of or access to any Client System is expressly prohibited. To the extent Keboola is granted access to Client facilities, Keboola shall comply with any commercially reasonable safety, control, protection, and other industry standard Client policies and guidelines relating to accessing Client Systems.
12.1. Each party shall defend, indemnify and hold harmless the other party and the other party’s officers, directors, employees, sublicensees, affiliates, customers and agents from and against any and all third party claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) (a “Claim”) arising from or relating to: any personal injury, death or property damage caused by the gross negligence or willful misconduct of the other party (including its employees, agents, or subcontractors).
12.2. Keboola shall defend, indemnify and hold harmless Client and its officers, directors, employees from and against any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) (also a “Claim”) arising from or relating to any infringement by the Services of any third-party Intellectual Property Rights.
12.3. Client shall defend, indemnify and hold Keboola and Affiliates, and their officers, directors, and employees, and Resellers (if applicable) from and against any and all claims, losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) (also a “Claim”) arising from or relating to: (a) any infringement or alleged infringement by the Client of any third-party Intellectual Property Rights; (b)any leak of or unauthorized access to the Client Data for reasons not directly related to a Keboola act or omission; (c) the Client Data content, or (d) Client’s breach of any representation, warranty or covenant herein.
12.4. The indemnified party which is subject to a Claim shall give the indemnifying party written notice of any such Claim and the indemnifying party has the right to participate in the defense of any such Claim at its expense. In no event shall the indemnified party settle any Claim without the indemnifying party’s prior written consent (which consent shall not be unreasonably withheld).
13.1. Keboola and Affiliates may represent to the public that the Client is a customer and Keboola may use the Client’s business name and logo to identify the Client as a customer of KBC on its websites and marketing material.
14.1. No Professional Advice Given. Client agrees and acknowledges that Keboola is not in the business of providing legal, financial, accounting, tax, or other professional services or advice and the Services or any component thereof do not constitute provision of such advice.
14.2. Notices. Either party may send notices to the other pursuant to this Agreement to the email address set out in an Order Form, and such notices will be deemed received two (2) business days after they are sent.
14.3. Amendment. This Agreement may be amended by Keboola with at least thirty (30) days written notice to the Client of any Material Change, where a “Material Change” means any amendment which materially and adversely affects the Client’s rights under the Agreement. Amendments which do not include a Material Change may be made by Keboola upon notice to the Client of same. Pursuant to Section 7.1 of this Agreement, the Client will have an opportunity to terminate the Agreement (and all Order Forms) in the event of a Material Change.
14.4. Independent Contractors. The parties acknowledge that each is an independent contractor and nothing herein constitutes a joint venture or partnership. The relationship under this Agreement shall not create any legal partnership, franchise relationship or other form of legal association between the parties that would impose a liability between the parties or to third parties.
14.5. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an authorized representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
14.6. Force Majeure. To the extent caused by events, circumstances or causes beyond its reasonable control, no delay, failure, or default will constitute a breach of this Agreement.
14.7. Assignment & Successors. Neither party may assign this Agreement. Notwithstanding, either party may assign this Agreement in whole or in part in connection with the sale, merger or other corporate combination involving all or substantially all of the assets of the assigning party to a third party provided that the assignee assumes all of the assigning party’s obligations and liabilities hereunder. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and enure to the benefit of the respective successors and assigns of the parties.
14.8. Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, or a breach thereof, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a satisfactory solution. If they do not reach settlement within a period of thirty (30) days, then, upon notice by any party to the other, any unresolved controversy or claim shall be finally settled by arbitration administered by the International Centre for Dispute Resolution in accordance with the provisions of its International Arbitration Rules. The number of arbitrators shall be one (1) and the place of arbitration shall be Vancouver, British Columbia. This provision shall not prevent either party from seeking or obtaining equitable relief in court of law.
14.9. Choice of Law & Jurisdiction. This Agreement will be governed and construed in accordance with the laws of the province of British Columbia and the laws of Canada as applicable.
14.10. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
14.11. Conflicts among Attachments. In the event of any conflict between provisions, the following order of precedence shall prevail (from greater to lesser precedence):
14.11.1. The terms of the executed Order Form with respect to the subject matter of that Order Form, which will not include any change or modification to the warranties, indemnities or limitation of liabilities set forth in the Agreement, which shall exclusively govern; and
14.11.2. The terms of the body of this Agreement;
14.12. Entire Agreement. This Agreement (which includes all herein referenced contracts such as the TOS) and Order Form sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.
14.13. Counterparts. The Order Form may be executed electronically and in any number of counterparts, each of which shall be deemed an original, and all of such counterparts shall together constitute one agreement.