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This Master Services Agreement (the “MSA”) is entered into between Customer and Ketch. “Customer” means the entity or person who agrees to be bound by this MSA. “Ketch” means Ketch Kloud Inc., a Delaware corporation with its business address at 548 Market Street PMB 62319, San Francisco, California, USA 94104-5401, unless otherwise indicated in the Order Form. This MSA may also be referred to as Ketch's "Terms of Service."
BY EXECUTING AN ORDER FORM, ACCEPTING AN ORDER FORM VIA A CLOUD MARKETPLACE, CLICKING "CREATE ACCOUNT" (OR A SIMILAR BUTTON OR CHECKBOX), OR ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS MSA. IF THE INDIVIDUAL ACCEPTING THIS MSA IS DOING SO ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (INCLUDING WHERE ACCEPTANCE OCCURS USING AN EMAIL ADDRESS ASSOCIATED WITH SUCH ENTITY), SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY, IN WHICH CASE "CUSTOMER" REFERS TO SUCH ENTITY. IF THE INDIVIDUAL DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE TO THESE TERMS, THE INDIVIDUAL MUST NOT EXECUTE AN ORDER FORM, ACCEPT A MARKETPLACE OFFER, CLICK "CREATE ACCOUNT," OR ACCESS OR USE THE SERVICES.
This MSA is effective as of the earliest of (a) the effective date of the first Order Form executed by the Parties, (b) the date Customer first accepts an Order Form via a marketplace, (c) the date Customer first creates a Ketch account, or (d) the date Customer first accesses or uses the Services (the “Effective Date”).
The parties agree as follows:
1. Definitions
1.1 The definitions and rules of interpretation in this Section apply in this Agreement.
“Agreement” means this MSA together with all associated Order Forms, the DPA, and any other documents expressly referenced herein. For the avoidance of doubt, each Order Form between Customer and Ketch forms a separate and distinct Agreement.
“AI Technology” means technology that uses machine learning, artificial intelligence, or other similar technologies, including generative AI.
“Confidential Information” has the meaning given to it in Section 8.
“Contact” means a unique email address associated with an individual whose information is stored in the Service. For clarity, multiple records, identifiers, or profiles associated with the same email address will be counted as a single Contact.
“Customer Data” means all information or data uploaded to the Services by or on behalf of Customer (other than Feedback as described in Section 6.4 below), including any outputs or results thereof produced by the Services from such information (excluding any Ketch intellectual property embedded therein).
“Documentation” means the applicable Service’s documentation available at https://docs.ketch.com, as may be updated from time to time, accessible via login to the applicable Service.
“DPA” means the data processing addendum available at: https://www.ketch.com/data-processing-addendum.
“Fees” means the amounts specified in the Order Form.
“Initial Order Period” means the initial subscription period for the Services as specified in the Order Form.
“Intellectual Property Rights” means all patent, copyright, trademark, trade secret, moral, and other intellectual property rights recognized in any jurisdiction, including all applications, registrations, renewals, and extensions of any of the foregoing.
“Ketch” means Ketch Kloud Inc., unless otherwise indicated in the Order Form.
“Ketch Data” means all data within or related to the Services that is not Customer Data, including: (a) system, platform, and application performance data; (b) Usage Data; (c) general learning and know-how gained from provision of the Services; and (d) any identifiers, classifications, benchmarks, templates, models, rules, signals, or metadata created or sourced by Ketch in connection with the Services.
“Personal Data” has the meaning set forth in the DPA.
”Renewal Term” means the period described in Section 12.2 of this Agreement.
“Order Form” means any ordering document specifying the Services to be provided hereunder, effective when fully executed by the Parties or, for a marketplace private offer, when accepted by Customer.
“Services” mean the products and services ordered by Customer under this Agreement, as more particularly described in the Order Form.
“Subscription Term” means the Initial Order Period together with any subsequent Renewal Term(s) (if applicable).
“Unique Identities” mean the monthly aggregate unique identity count based on the total number of unique identities across all of Customer’s digital properties covered by the applicable Order Form.
1.2 Clause, section and schedule headings are for informational and organizational purposes only and shall not affect the interpretation of this Agreement.
1.3 Where the words "include", "includes", "including" or "in particular" are used in an Agreement, they are deemed to have the words “without limitation” following them. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2. Provision of Services.
2.1. Services and Support. Ketch will, during the Subscription Term, (a) make the Services available to Customer pursuant to this Agreement, and the applicable Order Form and Documentation, and (b) provide the Services in accordance with the laws and regulations applicable to Ketch’s provision of the Services to its customers generally (i.e., without regard to Customer’s particular use of the Services), subject to Customer’s use of the Services in accordance with this Agreement.
2.2. Protection of Customer Data. Ketch will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. The DPA, which is incorporated into and made part of this Agreement, shall govern the processing of Personal Data carried out as part of the Services.
3. Customer’s Use of the Services.
3.1. License Grant. Subject to the terms and conditions of this Agreement (including payment by Customer of the Fees in accordance with Section 5 and the restrictions set out in this Section 3), Ketch hereby grants Customer a non-exclusive, non-transferable (except as set forth specifically in Section 14.6), non-sublicensable, revocable right and license, during the Subscription Term only, to use the Services, solely for Customer's internal business purposes.
3.2. Customer Responsibilities. Customer shall: (a) comply with this Agreement, the Documentation, and all applicable laws and regulations with respect to its activities under this Agreement; (b) keep secure and confidential any passwords and/or API keys necessary for accessing and using the Services; (c) use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, to promptly notify Ketch and reasonably cooperate with Ketch to block the unauthorized access or use; and (d) be responsible for the accuracy, quality, and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services or any Third-Party Application. Customer will ensure that all necessary rights and permissions are established for the transfer and/or use of Customer Data as outlined in this Agreement. Customer is solely responsible for all uses of Customer’s account. Although Ketch has no obligation to monitor Customer’s use of the Services, Ketch may do so and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of this Agreement.
3.3. Usage Restrictions. Customer shall not, directly or indirectly: (a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media, their derivatives, source codes, or templates, or by any means; or (ii) attempt to reverse compile, disassemble, tamper with, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or any other products which Ketch owns that is outside of the scope of this Agreement; (b) use the Services in a manner that is illegal or facilitates illegal activity, or causes damage or injury to any person or property or tortiuously violates any rights or interests; (c) use any automated system, including "robots," "spiders," or "offline readers," to access the Services in a manner that sends more request messages to the Services than a human can reasonably produce in the same period of time by using a conventional online web browser; (d) attempt to interfere with or compromise the integrity or security of the Services; (e) access all or any part of the Services in order to build or facilitate a product or service that competes with the Services; (f) (without the express prior permission of Ketch) license, sell, rent, lease, transfer, assign, distribute, display, disclose, provide, or otherwise commercially exploit, or otherwise make the Services available to any third party; (g) attempt to obtain, or assist any third party in obtaining, access to the Services other than as provided under this Agreement; (h) use the Services after the expiration, termination or default of this Agreement; (i) export, re-export, or transfer the Services, in whole or in part, to any country, person, or entity subject to U.S. export restrictions; (j) attempt to manipulate, bypass, or interfere with Ketch’s AI Technology, including through prompt injection, adversarial inputs, reverse engineering, or attempts to extract system behavior or underlying models; or (k) purport, promise or agree to do any of the foregoing. Ketch may, at its sole discretion and without liability and without being subject to damages, or prejudice to its other rights under this Agreement, disable Customer’s access to the Services for any breach or suspected breach of this Section 3.3.
3.4. No Legal Advice. Customer understands and acknowledges that the Services, Documentation and any other communication or information provided by Ketch are not intended, and should not be taken, as legal advice.
4. Third-Party Applications. The Services may enable interoperability with applications, products, services, or content provided by Customer or third parties that are not embedded within or controlled by Ketch (“Third-Party Applications”). Customer’s use of any Third-Party Applications in connection with the Services is at Customer’s sole discretion and risk. Any acquisition, access, use, or integration of Third-Party Applications, and any exchange of data between Customer and such Third-Party Applications, is solely between Customer and the applicable third party. Ketch does not warrant, endorse, or assume any responsibility for Third-Party Applications, whether or not they are designated by Ketch as interoperable with the Services. Ketch is not responsible for any disclosure, modification, loss, corruption, or deletion of Customer Data resulting from access to the Services by Third-Party Applications, or from Customer’s use of such Third-Party Applications. Customer is solely responsible for complying with the terms and conditions governing its use of any Third-Party Applications.
5. Fees and Payment.
5.1. Fees. Customer will pay the Fees in the applicable Order Form, invoiced in advance for the Initial Order Period and each Renewal Term. Ketch may revise Renewal Term Fees with at least sixty (60) days' prior written notice. Promotional and one-time pricing renews at list price unless the Order Form provides otherwise.
5.2. Usage Limits. Customer acknowledges that the Fees are based on the tier and usage limits in the Order Form. Ketch will measure usage monthly per the methodology in the Documentation and make usage reports available through the Services. If Customer’s usage exceeds the applicable usage limits, Ketch may, on thirty (30) days' prior written notice, move Customer to the next applicable tier, with the incremental Fees pro-rated for the remainder of the then-current Subscription Term. Except as expressly set forth in this Agreement, Fees are non-refundable, and Customer's committed tier and usage levels may not be reduced mid-term.
5.3. Payment Terms. Customer will pay each invoice submitted by Ketch: (a) within 30 days of the date of the invoice; and (b) in full and cleared funds. If Customer fails to make payment of any and all Fees when due, then, without liability to Customer or prejudice to any of Ketch’s other rights and remedies: (i) Ketch may cease to provide and/or disable Customer’s access to all or part of the Services and Ketch shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; (ii) Ketch shall be entitled to recover all reasonable attorney’s fees and costs (including, but not limited to any court costs, witness costs and appellate costs, if any) and other reasonable costs associated with the collection of such amounts; and (iii) charge Customer interest on the overdue amount(s) on a daily basis at a rate equal to the lesser of one and one half percent (1.5%) per month or the maximum amount allowed by law, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.4. Currency and Taxes. All amounts and Fees stated or referred to in this Agreement: (a) shall (unless otherwise detailed in the Order Form) be payable in US Dollars (USD); (b) are exclusive of any applicable taxes or charges (including any sales, use, and excise taxes, or any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder). Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the Services are for the Customer's account, and Customer hereby agrees to pay such taxes; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Ketch’s income, revenues, gross receipts, personnel, or real or personal property or other assets; and (c) are non-cancelable and all payments are, subject to Section 12.4, non-refundable. Customer will make all payments without setoffs, withholdings or deductions of any kind. If an Order Form specifies payment by credit card, Customer will promptly provide credit card billing details and hereby authorizes Ketch to charge the credit card for Services.
6. Data, Proprietary Rights, and Licenses.
6.1. Limited License to Customer Data.
Customer hereby grants Ketch a non-exclusive, worldwide, limited-term right and license to host, copy, use, transmit, and display Customer Data as appropriate for Ketch to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. Subject to the limited rights expressly granted herein, Customer reserves all rights in and to Customer Data.
6.2. Reservation of Rights. Subject to the limited rights expressly granted herein, Ketch and its licensors reserve all rights, title and interest (including all related Intellectual Property Rights) in and to the Services and Ketch Data, and any other materials developed by Ketch in its performance hereunder that derive from, improve, enhance or modify the Services or other Ketch pre-existing intellectual property. Customer may only use Ketch Data during the Subscription Term and as necessary to use the Services as permitted by this Agreement. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.3. Usage Data. Ketch may collect, use, generate and analyze usage data generated or derived from Customer’s use of the Services (“Usage Data”), including log data and metadata, to develop, improve, support, and operate its products and services.
6.4. Feedback. Customer may submit feedback or ideas about the Services, including how to improve the Services or any other service offered by Ketch (“Feedback”). Customer acknowledges that no further consideration is payable as a result of such Feedback, and that Ketch is free (but not obligated) to use the Feedback on a non-exclusive and non-confidential basis for any business purpose, during or after the Subscription Term; provided that Ketch may not breach its obligations of confidentiality under Section 8 in doing so.
6.5. Aggregated Data. Ketch may collect, produce, use, or retain aggregated or other deidentified data generated from Customer’s use of the Services (e.g., to create reports on industry or end user trends), provided that such data does not identify, or is not reasonably capable of identifying, Customer or any individual or household.
7. AI Technology.
7.1. Responsible AI Practice. Ketch will design and operate its AI Technology using commercially reasonable measures consistent with generally accepted industry practices. Ketch maintains policies and processes reasonably designed to assess and mitigate material risks associated with the operation of its AI Technology.
7.2. No Training on Customer Data. Ketch will not, and will not permit any third party to, use any Customer Data to train any artificial intelligence or machine learning models; provided that Ketch may use Feedback (e.g., Customer labeling of suggestions from AI Technology features with a thumbs up or thumbs down) and Usage Data for the purpose of training and improving its AI Technology.
7.3. Disclaimer. Due to the nature of AI Technology generally, Customer acknowledges that it is possible that (a) outputs from AI Technology may be similar to outputs generated by other Ketch customers’ use of the Services, (b) the same input may result in different outputs from one use to the next and (c) such outputs may be inaccurate, incomplete, or inappropriate for Customer’s requirements. Before leveraging any outputs from AI Technology, Customer is solely responsible for reviewing and validating the outputs for accuracy, safety, legality, and compliance with applicable laws and third-party terms. As between the parties, Customer assumes all responsibility for its use of such outputs. Customer may not represent that any outputs from AI Technology were human generated.
7.4. Ownership. Ketch retains all right, title, and interest in and to its AI Technology, including any underlying models, algorithms, and improvements thereto, provided that such ownership does not include Customer Data.
8. Confidentiality.
8.1. Definition. "Confidential Information" means information that the disclosing party identifies as confidential or the receiving party should reasonably understand to be confidential given the circumstances and the type of information. Customer Data is Customer's Confidential Information; Ketch Data is Ketch's Confidential Information. The terms of the Agreement (including pricing in any Order Form) are the Confidential Information of both parties. Confidential Information does not include information that the receiving party can demonstrate (a) it knew without restriction before receipt from the disclosing party, (b) is publicly available through no fault of the receiving party, (c) it rightfully received from a third party without a duty of confidentiality, or (d) it independently developed without use of the disclosing party's Confidential Information.
8.2. Protection. The receiving party will (a) use the disclosing party's Confidential Information only for purposes of exercising its rights or performing its obligations under this Agreement, (b) protect such Confidential Information using the same degree of care it uses to protect its own confidential information of like kind (but in no event less than reasonable care), and (c) limit access to such Confidential Information to its and its affiliates' employees, contractors, advisors, and (in the case of Ketch) Third-Party Application providers (“Recipients”), who need access for purposes consistent with this Agreement and who are bound by confidentiality obligations no less protective than those in this Section 8. The receiving party shall be liable for any breach of this Section 8 by its Recipients.
8.3. Compelled Disclosure. If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.
9. Representations, Warranties, Exclusive Remedies and Disclaimers.
9.1. Ketch Warranties. Ketch warrants that (a) it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement, and (b) the Services will perform materially in accordance with the applicable Documentation. Ketch shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform any ancillary or additional services (if applicable) in a professional and workmanlike manner. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Ketch or by third-party providers, or because of other causes beyond Ketch’s reasonable control, but Ketch shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in Sections 12.3 (Termination for Cause) and 12.4 (Refund or Payment upon Termination).
9.2. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, SUBJECT TO REASONABLE DEFECT. CUSTOMER ACCEPTS AND AGREES THAT ANY USE OF OUTPUTS FROM THE SERVICES IS AT CUSTOMER’S SOLE RISK AND CUSTOMER WILL NOT RELY ON SUCH OUTPUTS AS A SOLE SOURCE OF TRUTH OR FACTUAL INFORMATION, OR AS A SUBSTITUTE FOR PROFESSIONAL ADVICE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
10. Indemnification
10.1. Mutual Indemnity. Ketch will indemnify, defend and hold harmless Customer and its officers, directors, employees and representatives from any actual, out of pocket liability or expense (including reasonable attorneys’ fees) (“Liabilities”) from any unaffiliated third-party claim that the Services in the form made available by Ketch infringe such third party’s intellectual-property rights. Customer will indemnify, defend, and hold harmless Ketch and its officers, directors, employees and representatives (collectively, “Ketch Parties”) from any Liabilities from any unaffiliated third-party claim arising out of or from Customer Data or any other Customer information or materials, any Third-Party Application, or Customer’s violation of applicable laws or regulations or infringement of the intellectual-property or other rights of a third party. Each party’s indemnification obligations are conditioned on (a) the indemnified party providing the indemnitor with prompt written notice of any claim (provided that the failure to promptly notify will only relieve the indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure), (b) the indemnitor having sole control and authority with respect to the defense and settlement of any such claim, and (c) the indemnified party cooperating fully with the indemnitor, at the indemnitor’s sole cost and expense. The indemnitor will not, without the prior written consent of the indemnified party, agree to any settlement of any such claim that does not include a complete release of the indemnified party from all liability or that imposes any liability, obligation or restriction on the indemnified party. The indemnified party may participate with its own counsel, at its own expense. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
10.2. Exclusions. Ketch will have no obligation for claims arising out of or from (a) Services that are modified by Ketch in compliance with Customer’s specifications, (b) the combination of the Services with products or services not supplied by Ketch, where the cause of action would not have arisen but for such combination, (c) the unauthorized adaptation or modification of the Services, where the cause of action would not have arisen but for such adaptation or modification, (d) Customer’s failure to follow instructions provided by Ketch which would have cured the cause of action, provided that following such instructions would not have caused Customer substantial, additional cost, (e) use of the Services other than as described in the Agreement or Documentation, (f) Customer’s breach of this Agreement, or (g) Customer’s continued use of a version of the Services other than the most recently released version, where the cause of action would not have arisen if such most recently released version had been used. If any of the subsections above apply, Customer will indemnify, defend and hold harmless the Ketch Parties from and against any Liabilities from such claims.
10.3. Infringement Remedies. If the Services are held in a suit or proceeding to infringe any intellectual-property or other rights of a third party, or Ketch reasonably believes that it is likely to be found to do so, then Ketch may, at its sole cost, expense and option, either (a) procure the right to continue using the Services, or (b) modify the Services so that they become non-infringing without affecting the basic functionality of the Services; provided, however, that if (a) and (b) are not practicable, Ketch may, in its sole discretion, terminate this Agreement with respect to the applicable portion of the Services by giving Customer 30 days’ written notice, upon which termination Ketch will refund the portion of any prepayment that reflects the remaining subscription term.
11. Limitation of Liability.
11.1. Liability Cap. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
11.2. Exclusion of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY OR ITS AFFILIATES UNDER OR IN RELATION TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY FOR LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA IN EACH CASE WHETHER DIRECT OR INDIRECT, OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE ARISING FROM OR RELATED TO THIS AGREEMENT, HOWSOEVER CAUSED AND WHETHER OR NOT SUCH LOSSES ARE FORESEEABLE, EVEN IF THAT PARTY OR ITS AFFILIATE HAS BEEN ADVISED (OR IS OTHERWISE AWARE) OF THE POSSIBILITY OF SUCH LOSSES IN ADVANCE. THESE LIMITATIONS OF LIABILITY APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
12. Term and Termination.
12.1. Term. This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Subscription Term and Renewal. Subject always to either party’s right to terminate pursuant to this Section 12, each subscription (a) shall continue for the duration of the Initial Order Period as detailed in the applicable Order Form, and (b) after the Initial Order Period, each subscription shall automatically renew for successive periods of equal duration to the Initial Order Period or twelve months (whichever is longer) (each a “Renewal Term”), unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the Initial Order Period or Renewal Term (as the case may be).
12.3. Termination for Cause. Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other immediately on giving written notice to the other if (a) (i) the other party is in material breach of this Agreement where the breach is incapable of remedy, or (ii) the other party is in material breach of this Agreement where the breach is capable of remedy and the breaching party fails to remedy that breach within thirty (30) days after receiving written notice of such breach (or 10 days in the case of failure to pay fees as described in this Agreement), or (b) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, dissolution, or assignment for the benefit of creditors, in each case that is not dismissed within sixty (60) days, or otherwise ceases to do business in the ordinary course.
12.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 12.3(a), Ketch will provide Customer a pro-rata refund of any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Ketch in accordance with Section 12.3(a), Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Ketch for the period prior to the effective date of termination.
12.5. Effect of Termination. On termination of this Agreement for any reason (a) all licenses and other rights granted by Ketch under this Agreement shall immediately terminate, (b) Customer shall immediately pay to Ketch all outstanding unpaid invoices and interest and, in respect of Services rendered but for which no invoice has been submitted, Ketch will submit an invoice, which will be payable by Customer immediately on receipt, and (c) the accrued rights of the parties as at termination, and Sections 1, 5, 6, 7, 8, 9, 10, 11, 12.4, 12.5, 13, and 14 will survive any expiration or termination of this Agreement. Ketch shall have no obligation to retain, maintain, or provide access to any Customer Data following thirty (30) days after the effective date of termination or expiration of this Agreement, and may thereafter delete such data in accordance with its standard data retention policies.
13. Free Services.
13.1. Scope and Precedence. “Free Services” means any Services made available by Ketch to Customer without charge, including any trial, beta, preview, pilot, or freemium offerings. Notwithstanding anything to the contrary in this Agreement, this Section 13 governs Customer’s access to and use of Free Services and shall control in the event of any conflict with other provisions of this Agreement.
13.2. Limited, Revocable Access. Free Services are provided on a temporary, revocable, non-exclusive basis solely for Customer’s internal evaluation or limited use. Ketch may, at any time and in its sole discretion, modify, restrict, suspend, or terminate the Free Services (in whole or in part), or Customer’s access thereto, without notice and without liability or obligation to Customer.
13.3. No Commitment; Changes. Ketch has no obligation to continue offering any Free Services or to maintain any features, functionality, or data associated therewith. Ketch may change or remove any aspect of the Free Services at any time, including applicable usage limits, technical requirements, or eligibility criteria.
13.4. Usage Limits and Enforcement. Free Services are subject to the usage limits, technical restrictions, and other conditions described in the Documentation or on Ketch’s website, as may be updated from time to time. Customer shall not exceed such limits. Ketch may monitor usage and suspend or terminate access for any actual or suspected violation.
13.5. Broad Exclusions of Obligations. Notwithstanding anything to the contrary in this Agreement, with respect to Free Services: (a) no service levels, uptime commitments, support obligations, or maintenance obligations shall apply; (b) no security, data protection, or compliance obligations (including any such obligations under the DPA) shall apply, except to the extent required by applicable law; (c) any audit rights shall not apply; and (d) Free Services are not subject to any indemnification obligations by Ketch.
13.6. Disclaimer of Warranties and Limitation of Liability. NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” AND “ INDEMNIFICATION” SECTIONS ABOVE, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND KETCH SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE KETCH’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000. WITHOUT LIMITING THE FOREGOING, KETCH AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION ABOVE, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO KETCH AND ANY KETCH PARTIES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
13.7. Data; No Retention. Customer acknowledges and agrees that Ketch has no obligation to retain, maintain, or provide access to any Customer Data processed in connection with Free Services. Ketch may delete such Customer Data at any time, without notice. Customer is solely responsible for exporting Customer Data prior to any suspension or termination of access.
13.8. No Reliance. Customer agrees that it has not relied on the future availability of any Free Services, or any features or functionality thereof, in entering into this Agreement.
14. Miscellaneous.
14.1. Force Majeure. Neither party will be liable for failure or delay in performance due to causes beyond its reasonable control, including without limitation acts of God, terrorism, war, riots, fire, earthquake, flood or failure of internet or communications infrastructure, except that no such event shall excuse Customer's payment obligations.
14.2. Publicity. Ketch may include Customer’s name and logo in its marketing, promotional materials, and customer lists (including on its website) for the sole purpose of identifying Customer as a customer of Ketch.
14.3. Notices. All notices must be in writing, addressed (a) in the case of Ketch to [email protected], and (b) in the case of Customer to the postal or email address detailed in the Order Form, the email address provided by Customer at account creation, or such other address as either party has notified the other from time to time. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).
14.4. Entire Agreement; Order of Precedence. The Agreement is the entire agreement of the parties relating to this subject matter, and it supersedes all other commitments and understandings with respect to such subject matter. In the event of a conflict between the documents comprising the Agreement, priority shall be given in the following order: (a) any fully executed amendment between the Parties; (b) the applicable Order Form; (c) the DPA or any other addendum; and (d) this MSA. Any additional terms that Customer includes in a purchase order or similar document will be of no force and effect unless Ketch expressly agrees in writing that such terms will supersede this Agreement.
14.5. Relationship of the Parties; No Third-Party Beneficiaries. The Parties are independent contractors. Nothing in this Agreement creates a partnership, joint venture, agency, fiduciary, franchise, or employment relationship between the Parties, and neither Party has authority to bind the other or to incur any obligation on the other's behalf. This Agreement is for the sole benefit of the Parties and their permitted successors and assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever.
14.6. Assignment. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign this Agreement as a whole without such consent to an entity of good standing (other than any direct competitor of the other party) capable of complying with the rights and obligations under this Agreement succeeding to all or substantially all of such assigning party’s assets or business.
14.7. Waiver. No failure or delay by either party in exercising any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise of such right, power, or privilege. Any waiver must be in writing and signed by the waiving party to be effective, and shall apply only to the specific instance and purpose for which it is given.
14.8. Severability. If any provision of this Agreement is unenforceable, the validity of the remaining provisions will not be affected.
14.9. Governing Law; Jurisdiction; Venue. The parties agree this Agreement is governed by the laws of the State of California without regard to choice or conflicts of law rules. Any action arising under or related to this Agreement will be resolved in the state or federal courts (and the parties hereby consent to personal jurisdiction) in the County of San Francisco, CA. The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees. Claims must be brought in the initiating party’s individual capacity, not as a plaintiff or class member in any class action or similar proceeding. This Agreement may be executed in one or more counterparts. Faxed or emailed PDF copies of a party’s signature constitute valid and binding originals.