Terms of Use Agreement

Last Updated Date: [September, 2022]

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY.  THIS WEBSITE AND ANY OTHER WEBSITES OF KUBIYA, INC. (“KUBIYA”), ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY KUBIYA.  THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE.  BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR USING THE KUBIYA’S SDKS OR APPLICATION PROGRAMMING INTERFACES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH KUBIYA, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.

PLEASE BE AWARE THAT SECTION 13 CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND KUBIYA. AMONG OTHER THINGS, SECTION 13 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION.  SECTION 13 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.  PLEASE READ SECTION 13 CAREFULLY.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.”

The Kubiya Data Processing Addendum available at https://kubiya.ai/data-processing-addendum/ is incorporated into and forms part of these Terms of Use if you entered into these Terms of Use on behalf of a legal entity.  You acknowledge that you have read and understand Kubiya’s Privacy Policy and that your personal information will be collected, used and disclosed as described in our Privacy Policy. 

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY KUBIYA IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Kubiya will make a new copy of the Terms of Use Agreement available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website.  We will also update the “Last Updated” date at the top of the Terms of Use Agreement.  Kubiya may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/ or the Services is permitted.  If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services.  Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

  1. THE KUBIYA SERVICES
    1. Generally. Kubiya provides a dev ops assistant service to help customers alleviate their internal and external backlogs of dev op requests.  The Service may interface with customer and third party systems and accounts through Kubiya’s application programming interfaces (“APIs”), software development kits (“SDKs”) and command scripts, and utilizes AI and machine learning algorithms that can be trained in accordance with a customer’s particular set of source data, workflows and processes.  
    2. Connected Accounts. Users may link or connect certain of their internal systems and third party accounts associated with third party platforms and services they utilize (each, a “Connected Account”) with the Services in order to take advantage of some of the features and functions of the Services, such as querying information associated with those Connected Accounts. By granting the Kubiya access to any Connected Account (i) you represent and warrant that you are entitled to disclose any log-in information provided by you in connection therewith and/or grant the Kubiya access to such Connected Account(s); (ii) you represent and warrant that you are in good standing with respect to such Connected Accounts, including with respect to any account you have with the provider(s) of such Connected Accounts; and (iii) you acknowledge that Kubiya may access and use data in connection with your Connected Accounts in accordance with this Agreement and our Privacy Policy .  You acknowledge and agree that each Connected Account, including access to and use thereof and uptimes related thereto, is solely determined by the applicable provider of the relevant Connected Account.  The Company will have no liability for any unavailability of any Connected Account, or any third-party provider’s decision to discontinue, suspend or terminate any Connected Account.
    3. Outputs Disclaimer.  You acknowledge that the Services utilize certain AI and machine learning algorithms that can be trained to recognize and search for certain patterns (including natural language patterns), objects and events, and that such recognition is developed over time based on your use of the Services, including any source data, workflows and processes Made Available (as defined below) by you and your authorized users (your “Inputs”).  You further acknowledge and agree that any outputs and responses provided to you and your end users via the Services (“Outputs”) are wholly dependent on your Inputs, as well as the information and data Made Available to the Services through Connected Accounts.  As such, Kubiya makes no representation or warranty that any particular Outputs will be accurate, complete, timely or error-free, and you and your end users will be solely responsible for any acts or omissions taken or made in reliance of any such Outputs. 
    4. End User Consents. You are solely responsible for providing all notices and obtaining all consents required under applicable law with respect to the use of the Services by third party end users, such as your customers who query the Services for support.  
  2. USE OF THE SERVICES AND KUBIYA PROPERTIES.  The APIs, the SDKs, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (each, a “Kubiya Property” and collectively, the “Kubiya Properties”) are protected by copyright laws throughout the world.  
    1. API and SDK License and Limitations.  Subject to your compliance with the Agreement, Kubiya grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to use the APIs and SDKs solely as necessary to (i) connect to or integrate with, Connected Accounts, and (ii) to use the Services for your internal business purposes.  Kubiya’s APIs may be subject to certain call and transaction limits as further set forth in your Account.  Regardless of any such limits, Kubiya may limit: (i) the number of network calls that you may make via the API; (ii) the maximum file size; and (iii) anything else about the APIs as we deem appropriate, in our sole discretion.  We may impose of modify these limitations without notice. We may utilize technical measures to prevent over-usage and stop usage of the APIs after any usage limitations are exceeded or suspend your access to the APIs with or without notice to you in the event you exceed any such limitations.  Some software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
    2. Updates.  You understand that Kubiya Properties are evolving.  As a result, Kubiya may require you to accept updates to Kubiya Properties that you have installed on your computer or mobile device.  You acknowledge and agree that Kubiya may update Kubiya Properties with or without notifying you.  You may need to update third-party software from time to time in order to use Kubiya Properties.
    3. Certain Restrictions.  The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Kubiya Properties or any portion of Kubiya Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Kubiya Properties (including images, text, page layout or form) of Kubiya; (c) you shall not use any metatags or other “hidden text” using Kubiya’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Kubiya Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of Kubiya Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Kubiya Properties. Any future release, update or other addition to Kubiya Properties shall be subject to the Agreement.  Kubiya, its suppliers and service providers reserve all rights not granted in the Agreement.  Any unauthorized use of any Kubiya Property terminates the licenses granted by Kubiya pursuant to the Agreement.
  3. REGISTRATION.
  1. Registering Your Account.  In order to access certain features of Kubiya Properties you may be required to become a Registered User.  For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”).
  2. Registration Data.  In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.  You represent that you are (i) of legal age to form a binding contract; and (ii) not a person barred from using Kubiya Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.  You may not share your Account or password with anyone, and you agree to notify Kubiya immediately of any unauthorized use of your password or any other breach of security.  If you provide any information that is untrue, inaccurate, not current or incomplete, or Kubiya has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Kubiya has the right to suspend or terminate your Account and refuse any and all current or future use of Kubiya Properties (or any portion thereof).  You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.  Kubiya reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights.  You agree not to create an Account or use Kubiya Properties if you have been previously removed by Kubiya, or if you have been previously banned from any of Kubiya Properties.
  3. Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Kubiya. 
  1. RESPONSIBILITY FOR CONTENT.
    1. Types of Content.  You acknowledge that all text, files, documents, videos, audio, audio-visual content, data and other content (“Content”), including Kubiya Properties, is the sole responsibility of the party from whom such Content originated.  This means that you, and not Kubiya, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Kubiya Properties (“Your Content”), and that you and other users of Kubiya Properties, and not Kubiya, are similarly responsible for all Content that you and they Make Available through Kubiya Properties (“User Content”).
    2. No Obligation to Pre-Screen Content.  You acknowledge that Kubiya has no obligation to pre-screen Content (including, but not limited to, User Content), although Kubiya reserves the right in its sole discretion to pre-screen, refuse or remove any Content on its systems.  By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.  In the event that Kubiya pre-screens, refuses or removes any Content, you acknowledge that Kubiya will do so for Kubiya’s benefit, not yours.  Without limiting the foregoing, Kubiya shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
    3. Storage.  Unless expressly agreed to by Kubiya in writing elsewhere, Kubiya has no obligation to store any of Your Content that you Make Available on Kubiya Properties.  Kubiya has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Kubiya Properties.  
  2. OWNERSHIP.
    1. Kubiya Properties.  Except with respect to Your Content and User Content, you agree that Kubiya and its suppliers own all rights, title and interest in Kubiya Properties.  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Kubiya Properties.
    2. License to Your Content.  Subject to any applicable account settings that you select, you grant Kubiya a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of: (i) operating and providing Kubiya Properties to you; and (ii) improving Kubiya’s products and services; provided, that, any such use for improvement purposes shall be on an aggregated and anonymized basis.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated aboveYou agree that you, not Kubiya, are responsible for all of Your Content that you Make Available on or in Kubiya Properties.  You may not post or submit for print services a photograph of another person without that person’s permission.
    3. Feedback.  You agree that submission of any ideas, suggestions, documents, and/or proposals to Kubiya through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Kubiya has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Kubiya a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Kubiya Properties and/or Kubiya’s business.
  3. USER CONDUCT.  As a condition of use, you agree not to use Kubiya Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Kubiya Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Kubiya’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Kubiya; (vi) interferes with or attempt to interfere with the proper functioning of Kubiya Properties or uses Kubiya Properties in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Kubiya Properties, including but not limited to violating or attempting to violate any security features of Kubiya Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Kubiya Properties, introducing viruses, worms, or similar harmful code into Kubiya Properties, or interfering or attempting to interfere with use of Kubiya Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Kubiya Properties.
  4. FEES AND PURCHASE TERMS.
    1. Payment.  You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide Kubiya with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider”), or purchase order information, as a condition to signing up for the Services.  Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities.  By providing Kubiya with your credit card number and associated payment information, you agree that Kubiya is authorized to immediately invoice your Account for all fees and charges due and payable to Kubiya hereunder and that no additional notice or consent is required.  You agree to immediately notify Kubiya of any change in your billing address or the credit card used for payment hereunder.  Kubiya reserves the right at any time to change its prices and billing methods, either immediately upon posting on Kubiya Properties or by e-mail delivery to you.
    2. Volume Based Usage. In the event the fees are based on volume based usage tiers as set forth in your Account or the applicable service Order, and your usage from the [prior month] exceeds the usage volume levels to which you have purchased [by more than five percent (5%)], then the fees will be automatically amended without additional notice to the usage tier that corresponds with your actual usage volume during the evaluated period.
    3. Service Subscription Fees.  You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your applicable subscription tier (each, a “Service Commencement Date”).  Except as set forth in the Agreement, all fees for the Services are non-refundable.  No contract will exist between you and Kubiya for the Services until Kubiya accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
    4. Taxes.  The payments required under Section 7.3 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement.  If Kubiya determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Kubiya shall collect such Sales Tax in addition to the payments required under Section 7.3 (Service Subscription Fees) of this Agreement.  If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Kubiya, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Kubiya for any liability or expense Kubiya may incur in connection with such Sales Taxes.  Upon Kubiya’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes.  For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
    5. Withholding Taxes.  You agree to make all payments of fees to Kubiya free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on payments of fees to Kubiya will be your sole responsibility, and you will provide Kubiya with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
    6. Free Trials and Other Promotions.  Any free trial or other promotion that provides Registered User level access to the Services must be used within the specified time of the trial.  At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee.  If you are inadvertently charged for a subscription, please contact Kubiya to have the charges reversed.
  5. INDEMNIFICATIONYou agree to indemnify and hold Kubiya, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Kubiya Party” and collectively, the “Kubiya Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your use of, or inability to use, any Kubiya Property; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations.  Kubiya reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Kubiya in asserting any available defenses.  This provision does not require you to indemnify any of the Kubiya Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder.  You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Kubiya Properties.
  6. DISCLAIMER OF WARRANTIES AND CONDITIONS.
    1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF KUBIYA PROPERTIES IS AT YOUR SOLE RISK, AND KUBIYA PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  KUBIYA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.  
      1. KUBIYA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) KUBIYA PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF KUBIYA PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF KUBIYA PROPERTIES WILL BE ACCURATE OR RELIABLE.
      2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH KUBIYA PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS KUBIYA PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
      3. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS.  KUBIYA MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
      4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KUBIYA OR THROUGH KUBIYA PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
      5. FROM TIME TO TIME, KUBIYA MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT.  SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT KUBIYA’S SOLE DISCRETION.  THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
    2. No Liability for Conduct of Third Parties.  YOU ACKNOWLEDGE AND AGREE THAT KUBIYA PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD KUBIYA PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
    3. Third-Party Materials.  As a part of Kubiya Properties, you may have access to materials that are hosted by another party.  You agree that it is impossible for Kubiya to monitor such materials and that you access these materials at your own risk.
  7. LIMITATION OF LIABILITY.
    1. Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL KUBIYA PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT KUBIYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF KUBIYA PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE KUBIYA PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH KUBIYA PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON KUBIYA PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO KUBIYA PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.  THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A KUBIYA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A KUBIYA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A KUBIYA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
    2. Cap on Liability.  TO THE FULLEST EXTENT PROVIDED BY LAW, KUBIYA PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO KUBIYA BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A KUBIYA PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A KUBIYA PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A KUBIYA PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
    3. User Content.  KUBIYA ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
    4. Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
    5. Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KUBIYA AND YOU.
  8. TERM AND TERMINATION.  
    1. Term.  The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Kubiya Properties, unless terminated earlier in accordance with the Agreement.
    2. Prior Use.  Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Kubiya Properties or (b) the date you accepted the Agreement, and will remain in full force and effect while you use any Kubiya Properties, unless earlier terminated in accordance with the Agreement.
    3. Termination of Services by Kubiya.  If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Kubiya is required to do so by law (e.g., where the provision of the Website, the APIs, the SDK or the Services is, or becomes, unlawful), Kubiya has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Kubiya’s sole discretion and that Kubiya shall not be liable to you or any third party for any termination of your Account.
    4. Termination of Services by You.  If you want to terminate the Services provided by Kubiya, you may do so by (a) notifying Kubiya at any time and (b) closing your Account for all of the Services that you use; provided, that, you will not be entitled to a refund of any previously paid fees. Your notice should be sent, in writing, to Kubiya’s address set forth below.  
    5. Effect of Termination.  Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content.  Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases.  Kubiya will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.  All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
    6. No Subsequent Registration.  If your registration(s) with, or ability to access, Kubiya Properties or any other Kubiya community, is discontinued by Kubiya due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Kubiya Properties or any Kubiya community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Kubiya Properties to which your access has been terminated.  In the event that you violate the immediately preceding sentence, Kubiya reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
  9. INTERNATIONAL USERS.  Kubiya Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country.  These references do not imply that Kubiya intends to announce such Services or Content in your country.  Kubiya Properties are controlled and offered by Kubiya from its facilities in the United States of America. Kubiya makes no representations that Kubiya Properties are appropriate or available for use in other locations.  Those who access or use Kubiya Properties from other countries do so at their own volition and are responsible for compliance with local law.
  10. DISPUTE RESOLUTION.  Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully.  It requires users to arbitrate disputes with Kubiya and limits the manner in which you can seek relief from us.
    1. Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, Services, APIs or SDKs, or to any aspect of your relationship with Kubiya, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or Kubiya may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.  
    2. Arbitration Rules and Forum.  The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to [INSERT ADDRESS].  The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.  Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.   

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. 

  1. Authority of Arbitrator.  The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable.  The arbitration will decide the rights and liabilities, if any, of you and Kubiya.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us.  
  2. Waiver of Jury Trial.  YOU AND KUBIYA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Kubiya are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 13.1 (Application of Arbitration Agreement) above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would.  However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.  
  3. Waiver of Class or Other Non-Individualized Relief.  ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.  If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California.  All other disputes, claims, or requests for relief shall be arbitrated.  
  4. Severability. Except as provided in Section 13.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
  5. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Kubiya.
  6. GENERAL PROVISIONS.
    1. Electronic Communications.  The communications between you and Kubiya may take place via electronic means, whether you visit Kubiya Properties or send Kubiya e-mails, or whether Kubiya posts notices on Kubiya Properties or communicates with you via e-mail.  For contractual purposes, you (a) consent to receive communications from Kubiya in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Kubiya provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
    2. Assignment.  The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Kubiya’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
    3. Force Majeure.  Kubiya shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. 
    4. Exclusive Venue.  To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Kubiya agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Mateo County, California.
    5. Governing Law.  THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.  THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.  
    6. Choice of Language.  It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.  
    7. Notice.  Where Kubiya requires that you provide an e-mail address, you are responsible for providing Kubiya with your most current e-mail address.  In the event that the last e-mail address you provided to Kubiya is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Kubiya’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Kubiya at the following address: [______].  Such notice shall be deemed given when received by Kubiya by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
    8. Waiver.  Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    9. Severability.  If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
    10. Export Control.  You may not use, export, import, or transfer Kubiya Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Kubiya Properties, and any other applicable laws.  In particular, but without limitation, Kubiya Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Kubiya Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Kubiya Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by Kubiya are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Kubiya products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
    11. Consumer Complaints.  In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
    12. Entire Agreement.  The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.