Welcome to MadKudu’s Terms of Service ("Agreement") which govern your access to and use of the MadKudu services, website, and related products and offerings (collectively, the "Services").This Agreement is entered into between MadKudu Inc., a Delaware corporation ("MadKudu" or “We”), and you, the individual or entity accessing or using the MadKudu Services identified in the Order Form ("Customer" or “You”). This Agreement shall apply to all of the Services provided by MadKudu to the Customer unless governed by a separate agreement between MadKudu and Customer.
By accessing or using the MadKudu Services, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement. If you do not agree with any part of this Agreement, you must not use the MadKudu Services.
MadKudu may update or modify this Agreement from time to time. We will post any updates on our website and/or notify you. Your continued use of the MadKudu Services after any such changes constitutes your acceptance of the new terms.
If you have any questions about this Agreement or the MadKudu Services, please contact us at legal@madkudu.com.
Last Update: September 12, 2024.
1.1 Subject to the terms of this Agreement, MadKudu will provide Customer with the Services described in the Order Form or other ordering instrument available to Customer that describes the provision of the Services. As part of the registration process, Customer will identify an administrative user name and password for Customer’s MadKudu account.
1.2 MadKudu grants Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use and access the Services, for the applicable term described in your Order Form or other ordering instrument available to Customer, subject to the terms of the Agreement. Customer’s use of the Subscription Services includes the right to access all functionalities available in the purchased services.
1.3 Subject to the terms hereof, MadKudu will provide Customer with reasonable technical support services.
1.4 Trial Services. If you register for a trial of the Services, MadKudu will make the Service available on a trial basis until the earlier of (i) the end of the trial period or the full utilization of the Services, whichever comes first (ii) the start date of the Services purchased by you. During the trial period, the Services are provided "as is" without warranty, and MadKudu may suspend, limit, or terminate the trial at any time without notice or liability
1.5 Beta Services. From time to time, MadKudu may invite you to try Beta Services, which are for evaluation purposes and may be time, feature, or functionality-limited. If MadKudu provides a Beta Service, you must comply with any guidelines and not publicize or share the Beta Service. Use of Beta Services is at your sole risk, and MadKudu may discontinue them at any time without notice, with no warranties or liability.
1.6 MadKudu reserves the right to modify, enhance, or update the Services from time to time in its sole discretion ("Changes") without degrading its functionalities or security features. Changes may include, but are not limited to, modifications to functionality, features, user interface, security measures, underlying technology, or performance of the Services.
1.7 MadKudu shall provide Customer with reasonable advance notice in case of any material Changes (including suspension or discontinuation of any portion of the Services) but any material Changes shall only take effect from the start of Customer's next renewal term.
2.1 This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement, (b) the date Customer enters into an Order Form or other ordering document incorporating this Agreement, or (c) Customer’s use of the Services (the “Effective Date”).
2.This Agreement commences on the Effective Date and will remain in effect until all subscriptions to the Services granted in accordance with this Agreement have expired or been terminated, or this Agreement is otherwise terminated in accordance with its terms.
2.3 In addition to any other remedies it may have, either party may also terminate this Agreement, any Order Form or any ordering instrument available to Customer if the other party materially breaches any of the terms or conditions of this Agreement and the breaching Party does not cure the default thirty (30) days’ notice. Customer will pay in full for the Services up to and including the last day on which the Services are provided. If an Order Form is terminated by Customer in accordance with this section, MadKudu will refund Customer any prepaid fees covering the remainder of the Term of all Order Forms after the effective date of termination.
2.4 Treatment of Customer Data Following Expiration or Termination. Customer agrees that following expiration or termination of this Agreement, MadKudu may immediately deactivate Customer’s account(s) associated with the Agreement. MadKudu will make Customer Data available to Customer for export in accordance with the Documentation as long as MadKudu receives written notice within thirty (30) days after the effective date of expiration or termination from Customer regarding its intent to import such Customer Data. After such thirty (30) day period, MadKudu will have no obligation to retain Customer Data and will thereafter, unless legally prohibited, be entitled to delete all Customer Data in its systems or otherwise in its possession or under its control.
2.5 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, indemnification obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
3.1 Customer will pay MadKudu the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the allocation set forth on the Order Form or otherwise requires the payment of additional fees (as set forth in the Order Form), upon advance notice to Customer, Customer shall be billed for such usage and such invoice shall be paid within 30 days from the invoice date.
3.2 All fees paid by the Customer under this Agreement are non-refundable, including but not limited to any prepaid amounts, regardless of whether the services are fully utilized by the Customer. The Customer acknowledges and agrees that any such unused services or entitlements will expire at the end of the then-current term and will not be credited towards future services or renewal terms.
3.3 MadKudu reserves the right to change the Fees after or applicable charges and to institute new charges and Fees at the end of the subscription period, upon thirty (30) days prior notice to Customer (which may be sent by email).
3.4 If Customer believes that MadKudu has billed Customer incorrectly, Customer must contact MadKudu 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.
3.5 If MadKudu chooses to bill through an invoice, then payment terms for the applicable fees shall be as defined on the Order Form. 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 the Services. Customer is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to the purchase of the Services and assessable by any local, state, provincial, federal, or foreign jurisdiction.
3.6 Customer agrees that any purchase orders are for administrative purposes only and that any non-administrative terms (including, but not limited to legal, security, privacy, or finance terms) contained in a purchase order(s) do not apply to its purchase or use of the Services.
4.1 Customer shall use the Services in a responsible and professional manner consistent with the intended and permissible uses herein and consistent with standard industry practice. . Customer 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 (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by MadKudu or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
4.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software 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 252.2277014(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 the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
4.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and all applicable laws and regulations.
4.4 MadKudu will provide the Services in compliance with all applicable laws, and consistent with the Services’ then-current documentation.
4.5 MadKudu uses commercially reasonable efforts to maintain the highest service availability. However, MadKudu cannot guarantee that the Services will operate in an uninterrupted or error-free manner. MadKudu performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours and to avoid service interruptions and delays. MadKudu will use commercially reasonable efforts to notify Customer in advance of any scheduled downtime.
4.6 Integrations. MadKudu allows you to easily integrate any third-party tool to the Services, which allows to use these Third-Party integrations in connection with the Service, nonetheless, MadKudu does not warrant or support Third-Party Products and disclaims all responsibility and liability for these items, their use or their access to the Service, including the modification, deletion, disclosure, or collection of your Data. MadKudu might add, suspend or disincorporate the use of these third-party integrations at any given moment for any given reason.
5.1 Customer 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”). Customer shall also be responsible for using commercially reasonable efforts to maintain the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with Customer’s knowledge or consent.
5.2 MadKudu shall maintain and implement robust technical and organizational measures designed to ensure the security and integrity of any Customer Data processed in relation to this Agreement, and protect such data against unauthorized access, loss, destruction, alteration, or disclosure. Such measures shall be appropriate to the harm that might result from any unauthorized or unlawful processing, accidental loss, destruction, alteration, or disclosure of the Customer Data, and having regard to the nature of the data to be protected.
5.3 Customer acknowledges and agrees that, in the course of its engagement with MadKudu, MadKudu may provide, receive, or otherwise have access to Customer Data that amounts to personal data or personal information as defined under applicable data protection and privacy laws. For purposes of compliance with applicable data protection and privacy laws, the Parties agree to the terms of MadKudu’s standard Data Processing Addendum, available here.
6.1 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 MadKudu includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to MadKudu to enable the provision of the Services or data generated by Customer through the use of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, no less protective than it takes to protect its own information of a similar type, 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 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.
6.2 Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. MadKudu shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed by or on behalf of MadKudu in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
6.3 Notwithstanding anything to the contrary, in the performance of the Services, MadKudu may collect and analyze data related to Customer’s use of the platform, including but not limited to product analytics, user interactions, and performance metrics. This may include analyzing the types of queries submitted to Company’s platform and Company’s response effectiveness. Company uses this information solely to improve Service quality and user experience, provided that any data collected or reported is aggregated and anonymized such that no information identifying Customer, its users, leads or customers is collected or revealed. No rights or licenses are granted except as expressly set forth herein.
6.4 MadKudu will promptly notify Customer in writing upon becoming aware of any actual or suspected breach or misuse of Customer Confidential Information. MadKudu will return or delete all Customer Confidential Information to Customer, and remove such information from its systems, promptly upon termination of this Agreement or written request of Customer.
MadKudu warrants that the Services will substantially perform in accordance with the documentation available on the support portal and MadKudu shall use its best 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 Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by MadKudu or by third-party providers, or because of other causes beyond MadKudu’s reasonable control, but MadKudu shall use reasonable efforts to provide advance notice in writing, by email, or via an in-app notification of any scheduled service disruption. However, MadKudu 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 use of the Services. Except as expressly set forth in this Agreement, the Services are provided “as is” and MadKudu disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
8.1 MadKudu hereby agrees to indemnify and hold harmless Customer against any third-party damages, losses, liabilities, settlements and expenses (as well as Customer’s reasonable costs of defense and attorneys’ fees) in connection with any claim or action brought by a third party that arises (a) from an alleged violation by MadKudu of applicable laws or regulations in connection with the performance of its obligations under this Agreement or (b) from a claim that MadKudu’s provision of the Services violates any third-party intellectual property, contractual, or other third party right.
8.2 Customer hereby agrees to indemnify and hold harmless MadKudu against any third-party damages, losses, liabilities, fines, settlements and expenses (as well as MadKudu’s reasonable costs of defense and attorneys’ fees) in connection with any claim or action that arises from: (a) Customer’s violation of any provision of this Agreement (b) Customer’s sending of any information, messages, or materials to any lead processed by MadKudu in violation of any law or the rights of any third party (c) Customer’s failure to comply with any applicable laws, regulations, or governmental orders in connection with the performance of its obligations under this Agreement.
8.3 Each party’s indemnification obligations hereunder are conditioned on the party seeking indemnification: (a) notifying the indemnifying party promptly in writing of such action, (b) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at the indemnifying party’s request and expense, assisting in such defense or settlement.
9.1 Notwithstanding anything to the contrary in this Agreement, neither party nor its suppliers (including, but not limited to, equipment and technology suppliers), officers, affiliates, representatives, contractors, or employees shall be liable for any of the following under any theory of contract, negligence, strict liability, or otherwise:
9.Any errors or interruptions in the use of the services, loss, inaccuracy, or corruption of data, costs related to the procurement of substitute goods, services, or technology, or any loss of business;
9.1.2 Any indirect, exemplary, incidental, special, or consequential damages;
9.1.3 Any matter beyond such party's reasonable control;
9.2 The liability of each Party for damages or alleged damages hereunder, whether in contract, tort, or any other legal theory, is limited to, and will not exceed an amount equal to the total fees paid by the Customer to MadKudu for Services under this Agreement during the 12 months preceding the event giving rise to the liability, this applies whether or not a party has been advised of the possibility of such damages. However, the foregoing limitations shall not apply to claims or losses arising from (a) a Party's indemnification obligations under this Agreement; or (b) Gross negligence or willful misconduct by either party.
10.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
10.2 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its, without the other party’s consent (but upon providing notice) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement is 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 this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind MadKudu in any respect whatsoever.
10.3 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services.
10.4 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
10.5 All notices under this Agreement 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.
10.6 In the event of any conflict or inconsistency between this Agreement and the terms of an Order Form or other written agreement executed between Customer and MadKudu, the terms of the order form or written agreement shall take precedence and govern.
10.7 This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions and any disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts located in Santa Clara County in the state of California.
10.8 MadKudu may identify Customer as a Customer of MadKudu (using its name and logo) and generally describe the products or services it provides to Customer in its website, promotional materials, presentations, media, press releases and proposals to other current and prospective customers. Customer will be entitled to revoke this permission from MadKudu at any given moment during the Term.
