Master Subscription Agreement

Last updated: April 15, 2022

This Master Subscription Agreement (“MSA”) governs the use of services provided by Kaydoh, Inc., a California corporation (“Kaydoh,” “we” or “us”). Your use of this website (the “Site”) and the services made available on the Site, including the web-based platform and mobile application, is subject to this MSA. By using any of our Services, you agree to be bound by, and use our Services in compliance with, this MSA. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE OUR SERVICES. If you are entering into this MSA on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this MSA. If applicable, this MSA will also govern free trials.

Definitions

As used herein, “MSA” means this online services agreement, and materials available on the Site specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Kaydoh from time to time in its sole discretion;

“Content” means the information, documents, software, products, and services contained or made available to Client in the course of using the Service;

“Client,” “You” or “Client’s” means the authorized individual or legal entity, its directors, officers, affiliates agents, and employees, as identified in the registration and identification data provided to Kaydoh;

“Client Data” means any data, information or material provided or submitted by Client to Kaydoh in the course of utilizing the Service;

“Confidential Information” means: (a) all Client data used by Kaydoh in providing the Service; (b) any business or technical information of Kaydoh or Client; (c) the specific terms and pricing set forth in this MSA; and (d) information which is not marked as “confidential” or “proprietary” which should, under the circumstances, be understood to be confidential or proprietary by a person exercising reasonable business judgment;

“Effective Date” means the date the Subscription is accepted by Client;

“Initial Term” means the period during which Client is obligated to pay for the Service equal to the billing frequency selected by Client during the subscription process, i.e. if the billing frequency is annually, the Initial Term is one year and if the billing frequency is monthly, the Initial Terms is one month;

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature;

“License Term(s)” means the period(s), excluding the Initial Term, during which Users are licensed to use the Service pursuant to the MSA;

“Kaydoh Technology” means all of Kaydoh’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Client by Kaydoh in providing the Service;

“Service(s)” means the specific edition of Kaydoh’s service and online marketing and lead generation plan identified during the ordering process, developed, operated, and maintained by Kaydoh accessible via the Site or another designated web site or IP address or ancillary services rendered to Client by Kaydoh, to which Client is being granted access under this Agreement, including the Kaydoh Technology and the Content;

“Subscription Service” means our strategic leads and branding services and application;

“System Administrator(s)” means those Users designated by Client who are authorized to create User accounts and otherwise administer Client’s use of the Service;

“User(s)” means Client’s employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by Client (or by Kaydoh at Client’s request).

Subscription Services Payment, Renewal, Upgrading/Downgrading Terms

Free Trial: If Client has registered for a trial use of the Service, Client may access the Service for the time period specified by Kaydoh, specifically 14 days. Access to the software and evaluation of the services during this first 14 days are free on any plan and you can switch plan types during this period.

Fees: The Client agrees to pay all fees or charges to its account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable as a consideration for the Services provided by Kaydoh. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes. If Client does not pay the amounts due within 30 days of the due date, Kaydoh may suspend or terminate the Service, or both.

Term and Renewal: Subscriptions are available on an annual or monthly basis (the “Subscription Term”) from the Effective Date. At the end of each term, the Subscription will automatically renew for successive terms. Agreements can be terminated by either party with written notice of its intent to terminate the Agreement at least ten (10) days prior to the beginning of any renewal term.

The Subscription Service is billed in advance on a monthly or annual basis. Kaydoh will automatically renew and/or generate an invoice or bill the Client’s credit card for the monthly or annual subscription based on the Client’s selected Subscription Term.

Refunds: There will be no refunds or credits for partial use of Subscription or early termination of a pre-paid agreement. In order to treat everyone equally, no exceptions will be made.

Upgrade/Downgrade: For any upgrade or downgrade in plan level, you will automatically be charged the new rate on your next billing cycle. We do not prorate. Downgrading your Service may cause the loss of features of your account. Contact Kaydoh for any changes to your account

Payment by Credit Card: If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable at the beginning of the initial Subscription Term and any renewal subscription term(s), including upgrades. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.

Payment by Invoice: If you are paying by invoice, we will invoice you at the beginning of the initial Subscription Term and at the beginning of each subsequent billing period. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.

Cancellation and Termination

You may provide a cancellation via email to [email protected]. If you cancel the Service before the end of your current Subscription, your cancellation will take effect immediately and you will not be charged again.

Modification to Services and Pricing

Pricing of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change. Such notice may be provided by posting the changes to the Site or the platform itself.

Software Service Level Commitment

Technical Support: System support is included in your Subscription Fee. Live chat support for the Subscription Service is available 8AM to 6PM Pacific Time, Monday through Friday, excluding US national holidays. We accept email support questions 24 Hours per Day x 7 Days per week with a 24-hour response turnaround. We do not promise or guarantee any specific response time.

Availability: We try to make the Subscription Service, including the platform and mobile application, available 24 hours a day, 7 days a week, except for planned down-time for maintenance, but there are no guarantees of availability. If there is a planned upgrade or maintenance, Kaydoh will notify you well in advance. We will also notify you of the upgrade enhancements. Kaydoh’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Kaydoh is not responsible for any delays, delivery failures, or other damage resulting from such problems.

Mobile application: Mobile application access only available on certain devices. Usage of mobile application may result in additional data charges. Please check with your service provider.

Communications

By creating an account on our service, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.

Third-party Service Providers

Kaydoh expressly reserves the right to replace, in its sole discretion upon notice to Client, any of our professional project team members, as necessary, to provide quality and timely service to Client. Kaydoh may use independent contractors, specialists, or vendors to assist us in providing professional services. These entities and their personnel may be located within or outside the United States. In addition, Kaydoh may utilize third-party service providers, including cloud-based service providers, who may collect, use, transfer, transmit, store, or otherwise process Client information in connection with the delivery of certain services. In addition, our agreements with all service providers appropriately maintain and protect the confidentiality of Client information, provided we may use electronic media to transmit Client information and such use in itself will not constitute a breach of any confidentiality obligation. We remain responsible to Client for the supervision of all service providers, entities, and personnel who assist us in rendering services hereunder and for protecting the confidentiality of Client information.

Tracking & Data Storage

Kaydoh tracks Client usage in order to improve your experience and our level of service. No data is shared. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Client Data. You consent to the processing of Client Data in the United States.

Limits on Kaydoh: We will not use, or allow anyone else to use, Client Data to contact any individual or company except as you direct. We will use Client Data only in order to provide the Subscription Service to you and only as permitted by applicable law, this MSA, and our Privacy Policy, located at https://kaydoh.com/privacy/.

Client Data

All data submitted by Client to Kaydoh, whether posted by Client or by third parties, shall remain the sole property of Client or such third parties, as applicable, unless specifically notified in advance. Client, not Kaydoh, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Client Data.

Security Policy and Mutual Confidentiality

Protection of Confidential Information: The Client must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of Kaydoh for any purpose outside the scope of this agreement. The Client must make commercially reasonable efforts to limit access to Confidential Information of Kaydoh to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Client no less restrictive than the confidentiality terms of this agreement.

Data Protection: Kaydoh uses industry standard hardware and software to both prevent and detect intrusion from unauthorized parties. In the event of breach, Kaydoh will notify affected users within 72 hours of detection.

Exclusions: Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.

Intellectual Property Rights, Know-how and Publicity

Kaydoh Rights: All intellectual property rights (including, but not limited to patent rights, design rights, copyrights, rights in utility models, rights in databases, trademark rights, domain names, trade names, etc.) shall at all times be and remain the exclusive property of Kaydoh. Except for the license to use the account according to this MSA, no intellectual or other proprietary rights are transferred or assigned through the MSA to the Client.

Client Rights: Kaydoh grants the Client a personal, worldwide, non-assignable and non-exclusive license to use the software provided to Client by Kaydoh as part of the Services. This license is for the sole purpose of enabling Client and its User(s) to use and enjoy the benefit of the Services as provided by Kaydoh, in the manner permitted by this MSA.

API: Kaydoh provides access to its API as part of the Service for a fee tailored toward Client. Subject to the other terms of this Agreement, Kaydoh grants Client a non-exclusive, nontransferable, revocable license to interact with the API only for purposes of interacting with the Service as allowed by the API.

Client may not use the API in a manner, as reasonably determined by Kaydoh, that exceeds reasonable request volume or constitutes excessive or abusive usage. If any of these occur, Kaydoh can suspend or terminate Client’s access to the API on a temporary or permanent basis.

Kaydoh may change the API or remove existing endpoints or fields in API results upon at least 30 days’ notice to Client, but Kaydoh will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Kaydoh may add new endpoints or fields in API results without prior notice to Client.

The API is provided on an ‘AS IS’ and ‘WHEN AVAILABLE’ basis. Kaydoh has no liability to Client as a result of any change, temporary unavailability, suspension, or termination of access to the API.

Marketing: Kaydoh may use without Client’s express written consent Client’s name, logo and related trademarks in any of our marketing for the promotional purpose of highlighting that you use Kaydoh Services. If Client does not want Kaydoh to use this information, please contact Kaydoh.

Restrictions

You are permitted to store, manipulate, analyze, reformat, print, and display the Content only for your internal business use. Unauthorized use, resale or commercial exploitation of the Service and/or the Content in any way is expressly prohibited. You agree not to reverse engineer the Service, or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service. You shall not copy, license, sell, transfer, make available, distribute, or assign this license or the Content to any third-party, or (iv) modify or make derivative works based upon the Kaydoh or the Content; (v) commercially exploit the Service or the Content in any way, or (vi) “frame” or “mirror” any Content contained in, or accessible from, the Service on any other server, wireless or Internet-based device. All rights not expressly granted to Client are reserved by Kaydoh and its licensors.

Mutual Indemnification

Client shall indemnify and hold Kaydoh, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Client of the representations and warranties; or (iii) a claim arising from the breach by Client or Users of this Agreement, provided in any such case that Kaydoh (i) gives written notice of the claim promptly to Client (ii) gives Client sole control of the defense and settlement of the claim (provided that Client may not settle or defend any claim unless it unconditionally releases Kaydoh of all liability and such settlement does not affect Kaydoh’s business or Service); (iii) provides to Client all available information and assistance; and (iv) has not compromised or settled such claim.

Kaydoh shall indemnify and hold Client and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or trademark of a third party; (ii) a claim, which if true, would constitute a violation of Kaydoh of the representations or warranties; or (iii) a claim arising from breach of this Agreement by Kaydoh; provided that Client (i) promptly gives written notice of the claim to Kaydoh’s; (ii) gives Kaydoh sole control of the defense and settlement of the claim (provided that Kaydoh may not settle or defend any claim unless it unconditionally releases Client of all liability); (iii) provides to Kaydoh all available information and assistance; and (iv) has not compromised or settled such claim. Kaydoh shall have no indemnification obligation, and Client shall indemnify Kaydoh pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Client’s products, service, hardware or business process(es).

In particular, and without prejudice to the generality of the limitation of liability as mentioned herein, no guarantee is given by Kaydoh for i) the correctness and accuracy of the Content and the Deliverables that can be consulted through the Subscription, ii) an unrestricted use of the Deliverables in the Subscription and the Content, and iii) an uninterrupted use of the Subscription and the Content.

Representation & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Kaydoh represents and warrants that it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Client represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Service and that Client’s billing information is correct.

Disclaimer of Warranties

Kaydoh ensures that it will perform the Services under this MSA to the best of its ability, without any warranties as to the results or availability of such Services. Kaydoh and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the service or any content; Kaydoh and its licensors do not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet Client’s requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by Client through the service will meet Client’s requirements or expectations, (e) existing features of the product will be modified to meet Client’s requests or needs, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components;(iii) the service and all content is provided to Client strictly on an “as is” basis; and (iv) all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Kaydoh and its licensors.

International Use

The Kaydoh Service is hosted in the United States. If you use the Kaydoh Service from outside of the United States, you acknowledge that you are voluntarily transferring information (potentially including personally-identifiable information) and Content to the United States and agree that Kaydoh’s collection, storage and reporting of your information and Content is exclusively subject to the laws of the United States, not of the jurisdiction in which you are located. You will comply with all United States laws, rules and regulations applicable to the export of products, services, software and technical data regardless of the jurisdiction in which you are located.

Export Control: Each party must comply with the export control laws of the United States and other applicable countries

Limitation of Liability

In no event shall either party’s aggregate liability exceed the amounts actually paid by and/or due from Client in the twelve (12)-month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this service, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.

Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Client.

General

With respect to all Clients, this MSA shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in California. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Client and Kaydoh as a result of this agreement or use of the Service. The failure of Kaydoh to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Kaydoh in writing. This Agreement, together with the Kaydoh Terms and Conditions and the Kaydoh Privacy Policy, comprises the entire agreement between Client and Kaydoh and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

Questions or Additional Information:

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to [email protected]