Terms and Conditions

Effective date: April 20, 2022

Thank you for using Kraftful!

These Terms of Service (“Terms”) cover your rights and obligations relating to your access and use of Kraftful’s website, its products and services, including, without limitation, its products analytics software (the “Software”). All references to “Kraftful”, “we”, “us”, or “our” refer to Kraftful, Inc., a Delaware corporation. All references to “Company”, “you”, “your”, or “user” relate to all persons who use or access the Services, in their company’s capacity or in an individual capacity, including authorized users representing the company, its employees, or other persons using or accessing the Services. These Terms apply to our Privacy Policy as well and both these Terms and our Privacy Policy comply with the requirements of the EU General Data Protection Regulation (“GDPR”). By using the Service, you represent and agree that you have read, understand, and agree to be bound by both these Terms and our Privacy Policy as binding agreements.

Please carefully read these terms, as they contain important information about your rights and responsibilities, including limitation of our liability and binding arbitration. If you do not accept these terms in their entirety, you may not access or use the service.

Do not hesitate to contact us at info@kraftful.com if you have any questions or want to discuss these Terms.

1. SERVICES AND SUPPORT

Subject to these terms, Kraftful will use commercially reasonable efforts to provide Company the Services and reasonable technical support services in accordance with Kraftful’s standard practice.

2. BETA OR PILOT USE

2.1 Kraftful may make the Services available to Company on a trial basis for a period of 30 days (unless communicated otherwise by Kraftful in writing) (the “Pilot Period”), or (b) the start date of any purchased subscription plan (each, a "Plan") for the Software. Additional Beta terms and conditions may appear on the Beta web page.

2.2 For the beta or pilot use, the Services are provided “AS IS” and no warranty obligations of Kraftful will apply.

2.3 Company may terminate these Terms and all of its rights hereunder by providing Kraftful written notice thereof no less than 10 days prior to the end of the Pilot Period; otherwise, these Terms shall continue in effect for the Initial Service Term (subject to earlier termination as provided in the Agreement) under a paid plan as selected by Company on Kraftful's website.

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 Company will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Kraftful or authorized within the Services); use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Company for use on Company premises or devices, Kraftful hereby grants Company a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

3.2 Further, Company may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.

3.3 Company represents, covenants, and warrants that Company will use the Services only in compliance with Kraftful’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Kraftful has no obligation to monitor Company’s use of the Services, Kraftful may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

3.4 Company shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Company shall also be responsible for maintaining the security of the Equipment, Company account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Company account or the Equipment with or without Company’s knowledge or consent.

3.5 Company represents and warrants that Company: (a) will use the Services only in compliance with this Agreement and all applicable laws and regulations; (b) shall not infringe upon any third party’s trade secrets, trademarks, copyright, patent rights or other proprietary rights in its use of the Services, including but not limited to any Company Data provided by Company; and (c) notwithstanding anything contained in these Terms or the DPA, has obtained all necessary consents and permissions from data subjects for the submission and processing of any Personal Data (as that term is defined in our Privacy Policy) transmitted through the Services. Company shall defend, indemnify, and hold harmless, Kraftful and its respective directors, officers, employees, agents, parent, subsidiaries, and other affiliates, from and against any and all liabilities, damages, losses, costs and expenses, including the reasonable fees of attorneys and other professional third parties arising out of any breach of any representation made pursuant to this Section 3.5.

3.6 To the extent that Company Data includes personal data subject to applicable data protection laws, including the GDPR, (collectively, the “Applicable Data Protection Laws”), the terms of the Data Processing Agreement available at https://analytics.kraftful.com/dpa (the “DPA”) shall govern the processing of such data. The Parties agree that Kraftful may amend the terms of the DPA from time to time to the extent that Kraftful reasonably determines that such amendment is necessary to comply with the Applicable Data Protection Laws. The latest posted version of the DPA shall govern the processing of personal data subject to Applicable Data Protection Laws.

4. CONFIDENTIALITY AND PROPRIETARY RIGHTS

4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Kraftful includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Company includes non-public data provided by Company to Kraftful to enable the provision of the Services (“Company Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4.2 Company shall own all right, title and interest in and to the Company Data. Kraftful shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with the Services or support, and (c) all intellectual property rights related to any of the foregoing.

4.3 Notwithstanding anything to the contrary, Kraftful shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Company Data and data derived therefrom), and Kraftful will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Kraftful offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

5. PAYMENT OF FEES

5.1 If Company subscribe to a Service, Company will pay Kraftful the then applicable fees attributed to the Plan selected by Company, or if applicable, as described in an applicable Order Form (the “Fees”). If Company’s use of the Services exceeds the service capacity set forth in the selected Plan or otherwise requires the payment of additional fees (per the these Terms), Company shall be billed for such usage and Company agrees to pay the additional fees in the manner provided herein. Kraftful reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Company (which may be sent by email). If Company believes that Kraftful has billed Company incorrectly, Company must contact Kraftful no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Kraftful’s customer support department.

5.2 Kraftful may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Kraftful thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Company shall be responsible for all taxes associated with Services other than U.S. taxes based on Kraftful’s net income.

6. TERM AND TERMINATION

6.1 Subject to earlier termination as provided below, the Initial Service Term shall be as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

6.2 In addition to any other remedies it may have, either party may also terminate these Terms upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of these Terms. Company will pay in full for the Services up to and including the last day on which the Services are provided. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.3 Upon any termination of these Terms (a) all rights and licenses granted to Company under these Terms will immediately cease; (b) Company will immediately pay to Kraftful: (i) in the event of a material breach by Kraftful, all amounts due and payable for Services already provided up to the effective date of termination of these Terms or (ii) in the event of a material breach by Company, all amounts due under these Terms, including without limitation, any unpaid portions of the Fees; (c) each party will promptly return to the other party all Proprietary Information of such other party then in its possession or destroy all copies of Proprietary Information of such other party, at such other party’s sole discretion and direction; and (d) Kraftful will delete all Company Data, except as provided in Section 4.3 and to the extent that Kraftful is required under applicable law to keep a copy of the Company Data. Notwithstanding any terms to the contrary in these Terms, this sentence and Sections 2.2 and 3-11 will survive any termination of these Terms, and no refunds will be issued upon any termination of these Terms except as explicitly provided herein.

7. WARRANTY AND DISCLAIMER

Kraftful 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 the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Kraftful or by third-party providers, or because of other causes beyond Kraftful’s reasonable control, but Kraftful shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Kraftful does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from the use of the services. Except as expressly set forth in this section, the services are provided “as is” and Kraftful disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.

8. LIMITATION OF LIABILITY

Notwithstanding anything to the contrary, except for bodily injury of a person, Kraftful and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors, and employees shall not be responsible or liable with respect to any subject matter of these Terms or terms and conditions related thereto under any contract, negligence, strict liability, or other theory: (A) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services, or technology or loss of business; (B) for any indirect, exemplary, incidental, special or consequential damages; (C) for any matter beyond Kraftful’s reasonable control; or (D) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by Company to Kraftful for the Services under these Terms in the 12 months prior to the act that gave rise to the liability, in each case, whether or not Kraftful has been advised of the possibility of such damages.

9. TRADEMARKS AND PUBLICITY

The parties hereby grant each other a worldwide, non-exclusive, non-transferable, non-sublicenseable, limited license to their trademarks and logos solely to market the collaboration under these Terms in publicity materials, including the parties’ websites and social media accounts.

10. CHANGES

Kraftful may revise these terms from time to time. If Kraftful does revise these terms, the revised terms will supersede prior versions. Unless Kraftful says otherwise, revisions will be effective upon the effective date indicated at the top of these terms. Except to the extent required by GDPR, Kraftful will use reasonable efforts to provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address Kraftful has on file. For other revisions, Kraftful will update the effective date of these terms at the top of the page. We encourage you to check the effective date of these Terms whenever you visit our website or account portal. Your continued access or use of the Services constitutes your acceptance of any revisions. If you don’t agree to the revisions, you should stop using the Service and Kraftful is not obligated to provide you with the Service. If you have a subscription to any Service, any change to these Terms will be effective with respect to such Services upon the renewal of your subscription.

You acknowledge that Kraftful may change or deprecate features of the Services (including Kraftful SDKs and/or APIs) from time to time. Although Kraftful endeavors to avoid changes to the Services that are not backwards compatible, if any such changes become necessary Kraftful will endeavor to notify you at least thirty (30) days prior to Kraftful’s implementation of any such incompatible changes to the Services of which it becomes aware.

The availability of app store reviews and ratings in Kraftful depends on the continued availability of available app store data. In the event that any app store data source limits Kraftful’s access to data, Kraftful’s Services may temporarily or permanently be reduced accordingly without any liability to the Company.

11. MISCELLANEOUS

11.1 If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

11.2 These Terms are not assignable, transferable or sublicensable by Customer except with Kraftful’s prior written consent. Kraftful may transfer and assign any of its rights and obligations under these Terms without consent.

11.3 These Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.

11.4 No agency, partnership, joint venture, or employment is created as a result of these Terms and Company does not have any authority of any kind to bind Kraftful in any respect whatsoever.

11.5 In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees.

11.6 All notices under these Terms will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

11.7 These Terms shall be governed by the laws of the State of California without regard to its conflict of laws provisions.

11.8 Our Services may be integrated with services provided by third parties as part of the functionality of the Services. You understand that, except as required by GDPR, we do not have control over third parties and that such third parties are not agents of Kraftful. As such, we make no guarantees about, and assume no responsibility for, the information or services provided by third parties, except to the extent required by GDPR. You acknowledge and agree that we make no representation or warranty about, and do not endorse, third parties’ products or services or the information provided by third parties, whether through the Services or otherwise. Accordingly, we are not responsible for your use of any third party product or service or any harm or losses arising from or relating to your use of any third party products or services, except to the extent required by GDPR. You should contact the third party with any questions about their products and services. Kraftful hereby disclaims and you hereby discharge, waive and release Kraftful and its licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services. For California residents, you hereby waive California Civil Code Section 1542 in connection with the foregoing, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” You hereby waive any similar provision in any other jurisdiction.