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Terms of Service

Last updated: December 14th, 2020

These Kelp Terms of Service (this “Agreement”) govern your use of and access to the Kelp proprietary cloud-based application development platform provided to you by Pleeco Inc. (“Pleeco”, “us”, “we”, or “our”), which includes the Kelp platform (the “Kelp”), the Kelp website located at https://kelp.app (the “Site”), and all associated products, services and resources made available by Pleeco or enabled via the Site (collectively, “Services”).

PLEASE READ THIS AGREEMENT CAREFULLY AS IT IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” or “CUSTOMER”) AND PLEECO, AND GOVERNS YOUR USE OF THE SERVICES. THIS AGREEMENT ALSO APPLIES TO ALL INTERNET USERS WHO VISIT, ACCESS OR USE THE SITE IN ANY WAY. BY CLICKING ON THE “I ACCEPT” BUTTON DURING THE REGISTRATION PROCESS, BY COMPLETING THE REGISTRATION PROCESS OR USING THE SITE OR SERVICES YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PLEECO. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AN EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).

  1. PRIVACY POLICY. Please refer to our Privacy Policy located at https://kelp.app/legal/privacy for information on our privacy practices. You acknowledge and agree that your use of the Services is subject to our Privacy Policy and that the Privacy Policy forms a part of this Agreement.

  2. CHANGES TO AGREEMENT OR SERVICES. Pleeco may change this Agreement from time to time at its sole discretion, and if Pleeco makes any material changes, we will notify you by attempting to send you an email to the last email address you provided to us and/or posting a notice on the Site. Therefore, you agree to promptly notify us of any changes in your email address. Any changes to this Agreement will be effective upon the earlier of (a) 15 days after the dispatch of the email notice to you or the date of posting of notice of the changes on the Site, or (b) upon your consent to and acceptance of the updated Agreement if Pleeco provides a mechanism for Customer’s immediate acceptance (such as a click-through confirmation or acceptance button). Continued performance of Pleeco of its obligations under this Agreement is adequate consideration for any changes. By continuing to use or receive the Services after the effective date of any updated Agreement, you agree to be bound by such updated Agreement. It is your responsibility to regularly check the Site to view the then-current Agreement. If you disagree with any changes to this Agreement, your further use of the Services is not permitted, and your sole and exclusive remedy shall be to terminate your use and receipt of the Services. Because the Services are evolving over time, Pleeco may change or discontinue all or any part of the Services, at any time and without notice, at its sole discretion.

  3. DEFINITIONS.

    1. "Account” means an online account that Customer creates using its secure authentication credentials and registering with the Services.
    2. “Authorized User” means an employee or contractor of Customer who has: (a) been authorized by Customer to register to access and use the Services and (b) been assigned unique authentication credentials by Customer or Pleeco to access and use the Services, or to whom the Customer has permitted single sign on to access the Services through his/her work credentials.
    3. "Customer Data" means any and all information, data, software code, text, and other material transmitted, uploaded, posted, or otherwise provided by Customer or an Authorized User to the Services (whether directly or by granting Pleeco access to Customer’s third party accounts).
    4. "Documentation" means the printed, paper, electronic or online user instructions and help files made available by Pleeco for use with the Services, as may be updated from time to time by Pleeco.
    5. "Fees” means the fees that Customer agrees to pay Pleeco for the access and use of the Services in accordance with the Subscription Plan it chooses.
    6. "Open Source Software" means all software that is available under any “open source” license, including any software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative (www.opensource.org).
    7. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, moral rights, know-how, proprietary information, and any other intellectual property rights recognized in any country or jurisdiction in the world.
    8. “Services" has the meaning set forth in the first paragraph of this Agreement, but excludes any Third Party Technology (including any Open Source Software) included in or that may be used to provide or use the Services.
    9. “Term” means the subscription term for which Customer has purchased the Services.
    10. “Subscription Plan” means the subscription plan that Customer chooses and agrees to pay for from the available options provided by Pleeco on its Pricing Page located at https://kelp.app/pricing.
    11. “Third Party Technology” means certain third party software (including Open Source Software), technology, products and services, including plugins for the Services, which are made available by Pleeco in connection with the Services, or third party software (including Open Source Software), technology, products and services that Customer otherwise uses with the Services.
    12. “Usage” means the aggregate (a) amount of server, compute, storage, and network resources used by Customer in connection with the Services, (b) number of applications built by Customer using the Services, and (c) Customer Data.

  4. REGISTRATION; AUTHENTICATION CREDENTIALS; SECURITY.

    1. Registration. Subject to your and each Authorized User’s compliance with the terms of this Agreement, you may register to use the Services by creating an online Account. You agree to provide complete, accurate and current information when registering an Account to use the Services, and shall update such registration information promptly should it change or become inaccurate.
    2. Authentication Credentials. You will create a user identification and associated secure access credentials for each Authorized User’s access to and use of the Services. You are responsible for maintaining the confidentiality of all user identifications and access credentials for each of your Authorized Users and for ensuring that each user identification number and/or access credentials is used only by Authorized Users. You are solely responsible for any and all activities that occur under your Account, for any and all activities of your Authorized Users, and for all charges incurred from the use of the Services accessed from your Account. You will not share your access credentials with anyone and agree to immediately notify Pleeco of any unauthorized use of yourr Account, any user identification and/or access credentials, or any other breach of security known to your. Pleeco 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 any third party’s rights. Pleeco shall have no liability for any loss or damage arising from your failure to comply with the terms set forth in this Section. If you provide any information that is untrue, inaccurate, not current or incomplete, or Pleeco has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Pleeco has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof).
    3. Username. Notwithstanding anything contained herein to the contrary, by submitting Customer Data to any forums, comments or any other area on the Services, you hereby expressly permit Pleeco to identify you by your username (which may be a pseudonym) as the contributor of Customer Data in any publication in any form, media or technology now known or later developed in connection with Customer Data.
    4. Security. Pleeco will deploy industry standard security precautions intended to protect against unauthorized access to any Customer Data stored on the Services, and will exercise commercially reasonable efforts to deploy corrections within the Services for security breaches made known to Pleeco. However, you acknowledge that, notwithstanding the security precautions deployed by Pleeco, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Customer Data, and Pleeco disclaims all liability in connection with such security breaches.

  5. SERVICES.

    1. License Grant. Subject to the terms and conditions of this Agreement (including payment of all applicable Fees), Pleeco hereby grants to you, during the Term, a limited, non-exclusive, non-transferable, and revocable license (without the right to sublicense) to access and use the Services for your personal or internal business use only. Your use of the Services may be subject to certain limitations, such as, for example, limits on compute time or number of Authorized Users, in accordance with the Subscription Plan you have chosen.
    2. License Restrictions. You shall not, directly or indirectly, and shall not permit any Authorized User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on any element of the Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer the Services or your right to use the Services; (iv) use the Services for time sharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of yourself; (v) remove any proprietary notices on the Services or from Pleeco materials furnished or made available to you; (vi) perform, publish or disclose to third parties any performance or benchmark tests or analyses relating to the Services or the use thereof without Pleeco's prior written consent; (vii) access the Services in order to build a similar or competitive product or service or (viii) use the Services for any purpose other than its intended purpose. Any unauthorized use of the Services automatically terminates the licenses granted by Pleeco pursuant to this Agreement.
    3. Acceptable Use. You will not (and will not allow your Authorized Users to) use the Services in any way, or post, upload, publish, submit or transmit any Customer Data, that: (i) infringes, misappropriates or violates any third party’s Intellectual Property Rights, or rights of publicity, privacy or confidentiality; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is unlawful, harmful, defamatory, obscene, pornographic or otherwise objectionable material of any kind or nature; or (iv) contains viruses, worms, Trojan Horses, corrupted files, or any other similar software or programs, harmful code or data that may damage the operation of the Services or another's computer or mobile device. In addition, you will (and will require your Authorized Users to): (i) use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, (ii) not use the Services to transmit any bulk unsolicited commercial communications, (iii) not circumvent or otherwise interfere with any user authentication or security of the Services, and will immediately notify Pleeco of any breach, or attempted breach, of security known to you; (iv) not interfere or disrupt networks connected to the Services or interfere with other ability to access or use the Services; (v) not interfere with another customer's use and enjoyment of the Services; (vi) not run Maillist, Listserv, any form of auto-responder or "spam" on the Services, or that otherwise interferes with the proper working of the Services; (vii) not launch any program that "crawls," "scrapes," or "spiders" any page, data, or portion of the Services (through use of manual or automated means); (viii) not reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the Services (including Customer’s Account), or access to or use of the Services; (ix) use, display, mirror or frame the Services, or any individual element within the Services, Pleeco’s name, any Pleeco trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Pleeco’s express written consent; (x) intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the Services, whether through the use of a network analyzer, packet sniffer or other device; (xi) make any automated use of the Services, or take any action that imposes or may impose (in Pleeco’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Services; (xii) use, facilitate, create, or maintain any unauthorized connection to the Services, including, but not limited to: (a) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Services or (b) any connection using programs, tools or software not expressly approved by Pleeco; (xiii) solicit or attempt to solicit personal information from other users of the Services; (xiv) use the Services to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers; (xv) forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information; (xvi) upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”); (xvii) impersonate any person or entity, including, but not limited to, Pleeco personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity; (xviii) make available any Customer Data or other content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (xix) register for an Account on behalf of an individual other than the Customer; (xx) stalk or otherwise harass any other user of the Services; or (xxi) advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

  6. CUSTOMER DATA.

    1. License. You hereby grant to Pleeco a non-exclusive, non-transferable, sublicensable (only to Pleeco’s third party service providers who provide services to Pleeco for the purpose of this Agreement), royalty-free, worldwide license to collect, store, reproduce, modify, format, retain, analyze, publish, process and use as necessary, the Customer Data to perform its obligations under this Agreement and in connection with your use of the Services; provided that, nothing in this Agreement will restrict or obstruct Pleeco’s rights in and to the Aggregate Data in accordance with Section 10.2 hereof. Please remember that other users may search for, see, use, modify and reproduce any of Customer Data that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in any Customer Data (if not you), has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Pleeco, are responsible for all Customer Data.
    2. No Obligation to Pre-Screen Data. You shall be solely responsible and liable for the completeness, integrity, quality and accuracy of Customer Data. You acknowledge that Pleeco has no obligation to pre-screen content (including, but not limited to, Customer Data), although Pleeco reserves the right in its sole discretion to pre-screen, refuse or remove any content (including Customer Data). By entering into this Agreement, you hereby provide its irrevocable consent to such monitoring. You acknowledge and agree that it has no expectation of privacy concerning the transmission of Customer Data, including without limitation chat, text, or voice communications. In the event that Pleeco pre-screens, refuses or removes any content, you acknowledge that Pleeco will do so for Pleeco’s benefit, not yours. Without limiting the foregoing, Pleeco shall have the right to remove any content that violates this Agreement or is otherwise objectionable.
    3. Representations and Warranties. You represent and warrant that (i) you own or have licenses to all Customer Data and have an unrestricted right to transfer such Customer Data to Pleeco for purposes of providing Services under this Agreement, (ii) provision of Customer Data to, and use of the Customer Data by, Pleeco, as contemplated herein will not infringe any third party Intellectual Property Rights, rights of privacy or publicity, or any other rights, (iii) Customer Data does not contain any viruses, worms, malware, Trojan horses, or other harmful or destructive code, and (iv) Customer Data is not spam, is not machine or randomly generated, and does not contain unethical or unwanted content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further any unlawful acts.
    4. Compliance with Laws. You represent and warrant that you have complied and will comply with all applicable laws (whether local, national or international) in connection with the Customer Data. If applicable and to the extent Customer Data includes personally identifiable information (“Personal Information”), you have obtained all necessary consents and have complied with all applicable laws, rules, regulations and orders, including without limitation, all data privacy laws, in collecting, processing, using and transferring such Personal Information to Pleeco for purposes of providing Services to you under this Agreement. Pleeco agrees that it will not collect, access, use, store, disclose, transfer or otherwise process (collectively, "Process" or "Processing") any Personal Data except: (i) for the purposes of this Agreement, including without limitation, to implement and deliver Services, provide customer support, and help you prevent or address service or technical problems; (ii) as expressly requested or permitted by you in this Agreement or otherwise; or (iii) as compelled by law. For purposes of this Agreement, you is the "data controller" and Pleeco is a "data processor" with respect to Personal Data (as such terms are defined in the Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data and any replacement directive or regulation imposing equivalent obligations).
    5. Disclaimer. PLEECO WILL FOLLOW ITS STANDARD ARCHIVAL PROCEDURES FOR STORAGE OF ANY CUSTOMER DATA. IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA, PLEECO WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO RESTORE THE LOST OR CORRUPTED CUSTOMER DATA FROM THE LATEST BACKUP OF SUCH CUSTOMER DATA MAINTAINED BY PLEECO. PLEECO WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF CUSTOMER DATA. PLEECO’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION WILL CONSTITUTE PLEECO’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
    6. Investigations. Pleeco may, but is not obligated to, monitor or review the Services and Customer Data at any time. Without limiting the foregoing, Pleeco shall have the right, in its sole discretion, to remove any of Customer Data for any reason (or no reason), including if such Customer Data violates this Agreement or any applicable law. Although Pleeco does not generally monitor user activity occurring in connection with the Services or Customer Data, if Pleeco becomes aware of any possible violations by you of any provision of this Agreement, Pleeco reserves the right to investigate such violations, and Pleeco may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove Customer Data, in whole or in part, without prior notice to you.
    7. Personal Data. For the subset of Customer Data that is Personal Data, Pleeco’s Privacy Policy (available at https://kelp.app/legal/privacy) also applies and is incorporated into these Terms.

  7. INTERACTIONS WITH OTHER USERS.

    1. User Responsibility. You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact; provided, however, that Pleeco reserves the right, but has no obligation, to intercede in such disputes. You agree that Pleeco will not be responsible for any liability incurred as the result of such interactions.
    2. Data Provided by Other Users. The Services may contain data provided by other users of the Services. Pleeco is not responsible for and does not control such data. Pleeco has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to such data. You use all such data and interact with other users of the Services at your own risk.

  8. CUSTOMER OBLIGATIONS.

    1. Cooperation and Assistance. As a condition to Pleeco’s obligations hereunder, you and Authorized Users will at all times: (a) provide Pleeco with good faith cooperation and assistance and make available such information, facilities, personnel, equipment and support as may be reasonably required by Pleeco in order to provide the Services, including, but not limited to, providing Customer Data, and security access, information, and software interfaces to your business applications; and (b) carry out in a timely manner all other Customer responsibilities set forth in this Agreement. In addition, you are responsible for (i) obtaining, deploying and maintaining all computer hardware, software and communications equipment needed to access and use the Services, (ii) contracting with third parties that provide services related to you being able to access and use the Services (e.g., ISP, telecommunications, etc.) and (iii) paying all third-party fees and access charges incurred while accessing and using the Services. Neither will Pleeco be required to supply any hardware, software or equipment to you by reason of this Agreement, nor will it be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
    2. Marketing Support. You grant to Pleeco a non-exclusive, limited right to use your logos and trademarks (collectively, “Marks”) on Pleeco’s websites and in the production of marketing materials to depict you as a customer of Pleeco. All goodwill developed from such use will be solely for your benefit.
    3. Enforcement. You will ensure that all Authorized Users comply with the terms and conditions of this Agreement. You will promptly notify Pleeco of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Pleeco with respect to: (a) investigation by Pleeco of any suspected or alleged violation of this Agreement, and (b) any action by Pleeco to enforce the terms and conditions of this Agreement. Pleeco may suspend or terminate your or any Authorized User’s access to the Services upon notice to you in the event that Pleeco reasonably determines that you or any such Authorized User has violated the terms and conditions of this Agreement. You will at all times be responsible for all actions taken under an Authorized User’s Account, whether such action was taken by an Authorized User or by another party, and whether such action was authorized by an Authorized User. You will be liable for any violation of the terms and conditions of this Agreement by any Authorized User.

  9. FEES AND TAXES.

    1. Fees. You agree to pay all Fees in accordance with the Subscription Plan for access and use of the Services. Except as provided for herein, all payment obligations are non-cancelable and Fees paid are non-refundable.
    2. Payments. You agree to provide a valid credit card, debit card, or other valid payment information (the “Payment Provider”) to pay for monthly Fees and authorizes Pleeco to charge such credit card, debit card, or other valid payment mechanism on a monthly basis for the applicable Fees until the Services are terminated under this Agreement. You are responsible for providing complete and accurate billing and contact information to Pleeco and notifying Pleeco of any changes to such information. Your Payment Provider agreement governs your use of the designated credit card, debit card or other valid payment method, and you must refer to that agreement and not this Agreement to determine your rights and liabilities with respect to such payment method. By providing Pleeco with your credit card or debit card number and associated payment information, you agree that Pleeco is authorized to immediately invoice your Account for all Fees due and payable to Pleeco hereunder and that no additional notice or consent is required.
    3. Taxes. The Fees do not include any Taxes that may be due in connection with your receipt or use of the Services. You are solely responsible for the payment of all such Taxes to the relevant tax authorities (including any related penalties and interest), and you agree to indemnify Pleeco for any liability and expenses Pleeco incurs in connection with your failure to pay any such Taxes. Upon Pleeco’s request, you will promptly provide Pleeco with official receipts issued by the appropriate taxing authority, or other such evidence that Customer has paid all applicable Taxes. For purposes of this section, “Taxes” shall mean any sales, use, value added and other taxes or duties (excluding taxes based on Pleeco's net income).

  10. OWNERSHIP.

    1. Pleeco Services. As between Pleeco and you, all right, title and interest in the Services and any other Pleeco materials furnished or made available by Pleeco, and all modifications and enhancements thereof, including all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Pleeco or Pleeco's licensors and providers, as applicable. Except with respect to Customer Data, you agree that you have no right, title, or interest in or to any content that appears on or in the Services. You hereby irrevocably assign to Pleeco all suggestions, ideas and feedback proposed by you regarding the Services (“Feedback”), and all Intellectual Property Rights in the Feedback. You agree to execute any documents or take any actions as may reasonably be necessary, or as Pleeco may reasonably request, to perfect such ownership of the Feedback. To the extent any of the rights, title and interest in and to Feedback or Intellectual Property Rights therein cannot be assigned by you to Pleeco, you hereby grant to Pleeco an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. If the foregoing assignment and license are not enforceable, you agree to waive and never assert against Pleeco those non-assignable and non-licensable rights, title and interest. If you are unable or unwilling to execute any such document or take any such action, Pleeco may execute such document and take such action on your behalf as your agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
    2. Customer Data. As between Pleeco and you, all right, title and interest in the Customer Data and all Intellectual Property Rights therein, belong to and are retained solely by you. Pleeco may monitor your use of the Services and use data and information related to such use and Customer Data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregate Data"). As between Pleeco and you, all right, title and interest in the Aggregate Data and all Intellectual Property Rights therein, belong to and are retained solely by Pleeco, and Pleeco may make such Aggregate Data publicly available, and use such Aggregate Data to the extent and in the manner it deems fit including without limitation, as required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement, service improvement, and marketing, provided that no such Aggregate Data identifies you or your Confidential Information.

  11. CONFIDENTIALITY.

    1. Obligations. Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party ("Confidential Information"). The parties hereby agree that Pleeco's Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto as well as the Services, Feedback, and materials provided with respect to the Services. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any Confidential Information of the disclosing party, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties' respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.
    2. Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
    3. Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each party shall, subject to Section 16.5 (Effect of Termination), promptly return to the other party, or destroy, as the parties agree, all copies of the other party's Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.

  12. DMCA/Copyright Policy. Pleeco respects copyright law and expects its users to do the same. In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, Pleeco have adopted a policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. If you believe that anything in Services infringes any copyright that you own or control, you may notify our Designated Agent as follows:

    Designated Agent: Copyright Agent Address: 222 Broadway FL200, New York, NY 10038, Telephone Number: 19178096878, E-Mail Address: dmca@pleeco.com

    Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material in Services is infringing, you may be liable to us for certain costs and damages.

  13. WARRANTY DISCLAIMERS.

    1. WARRANTY DISCLAIMER.

      1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PLEECO AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
      2. PLEECO MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (2) CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
      3. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM PLEECO OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
      4. FROM TIME TO TIME, PLEECO 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 PLEECO’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 PLEECO IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD PLEECO 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. No Liability for Conduct of Other Users. YOU IS SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTANDS THAT PLEECO DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES.

  14. Indemnification. You shall defend, indemnify and hold harmless Pleeco, its licensors and their respective officers, directors and employees ("Pleeco Indemnified Parties") from and against any and all third-party (including any Authorized User) claims which arise out of or relate to: (a) a claim or threat that the Customer Data (and/or the exercise by Pleeco of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party's intellectual property, privacy, or other rights; (b) your use or alleged use of the Services other than as permitted under this Agreement, or (c) your breach or violation of this Agreement or any applicable law. Your obligations under this Section are conditioned upon (x) you being promptly notified in writing of any claim under this Section, and (y) Pleeco providing all reasonable assistance (at your expense and reasonable request) in the defense of such claim. Pleeco may, at its own expense, engage separate counsel to advise Pleeco regarding a third-party claim and to participate in the defense of the claim.

  15. LIMITATION OF LIABILITY.

    1. Limitation on Direct Damages. IN NO EVENT SHALL PLEECO’S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, LESS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY PLEECO TO CUSTOMER IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.
    2. Waiver of Consequential Damages. IN NO EVENT SHALL PLEECO OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF PLEECO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PLEECO WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
    3. Essential Purpose. You acknowledge that the terms in this Section 15 are an essential basis of the bargain described in this Agreement and that, were Pleeco to assume any further liability, the Fees would, out of necessity, be set much higher.

  16. TERMINATION.

    1. Term. The term of this Agreement commences on the date you first register and create an Account and continues until this Agreement is terminated as provided herein.
    2. Termination for Convenience. At any time, (a) you shall have the right to terminate this Agreement and its use of the Services by following the Account cancellation procedure set forth on the Site or by emailing Pleeco customer support at support@kelp.app, and (b) Pleeco shall have the right to terminate this Agreement and your use of the Services by providing at least ten days’ notice of such termination to you at the email address set forth in your Account; provided, however, that under no circumstances shall you be entitled to any refund of any Fees for its use of the Services prior to the date of any termination.
    3. Termination for Breach. Either party may immediately terminate this Agreement upon written notice if the other party has breached a material term of this Agreement.
    4. Failure to Pay/Customer Conduct/Inactive free Account. Pleeco may suspend or terminate your access to the Services, at Pleeco's sole option, with or without notice to you, if: (i) the Fees are not paid when due, (ii) any credit or debit card charge or other payment mechanism for Fees is declined; or (iii) if you breaches Section 5.2 (License Restrictions), 5.3 (Acceptable Use), or 6.4 (Compliance with Laws), and such suspension or termination may continue, at Pleeco’s discretion, until the applicable issue is resolved. In addition, Pleeco reserves the right to terminate the Account of any Customer who is using the free Subscription Plan of the Services (i.e. without an obligation to pay for the use of Services), if such Customer’s Account remains inactive for the Defunct Period. For the purposes of this Agreement, “Defunct Period” means the period of time an Account under the free Subscription Plan is permitted to remain inactive, as set forth in the Pricing Page (https://kelp.app/pricing), and if no such period is mentioned, then in the event the Account remains inactive for 60 days.
    5. Effect of Termination. Upon termination of this Agreement, (a) your use of and access to the Services shall immediately cease and (b) all Fees and other amounts owed to Pleeco shall be immediately due and payable by you. Pleeco shall have no obligation to maintain or provide any Customer Data and shall, unless legally prohibited from doing so, delete all Customer Data (but not Aggregate Data) in its systems or otherwise in its possession or under its control within a reasonable time after the effective date of any termination of this Agreement. In addition, within ten (10) days of the effective date of termination each party shall: (a) return to the disclosing party, or at the disclosing party's option, the receiving party shall destroy, all items of Confidential Information (other than the Customer Data) then in the receiving party's possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to disclosing party that it has complied with the foregoing.
    6. Survival. The following Sections of this Agreement shall survive the termination of this Agreement: Sections 3 (Definitions), 6.3 (Representations and Warranties), 6.4 (Compliance with Laws), 6.5 (Disclaimer), 9 (Fees and Taxes), 10 (Ownership) 11 (Confidentiality), 13 (Warranty Disclaimer), 14 (Indemnification), 15 (Limitation of Liability), 16 (Termination), 19 (Notices) and 20 (General).

  17. VIOLATIONS. If Pleeco becomes aware of any possible violations by you of this Agreement, Pleeco reserves the right to investigate such violations. If, as a result of the investigation, Pleeco believes that criminal activity has occurred, Pleeco reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Pleeco is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Customer Data, in Pleeco’s possession in connection with your use of the Services, to (a) comply with applicable laws, legal process or governmental request, (b) enforce the Terms, (c) respond to any claims that Customer Data violates the rights of third parties, (d) respond to your requests for customer service, or (e) protect the rights, property or personal safety of Pleeco, its Registered Users or the public, and all enforcement or other government officials, as Pleeco in its sole discretion believes to be necessary or appropriate.

  18. INTERNATIONAL USERS. The Services 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 Pleeco intends to announce such Services or content in your country. The Services are controlled and offered by Pleeco from its facilities in the United States of America. Pleeco makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

  19. NOTICES. Pleeco may give notice to you by means of a general notice through the Services interface, electronic mail to your e-mail address on record with Pleeco, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to your address on record with Pleeco. You may give notice to Pleeco by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Pleeco, Inc., 222 Broadway Floor 19, New York, NY 10038, Attention: CEO. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

  20. GENERAL. Pleeco may subcontract to third parties some or all of Pleeco's obligations under this Agreement provided Pleeco is liable for any act or omission of such subcontractors. This Agreement may not be assigned or transferred by you without Pleeco's prior written consent. Any assignment or transfer in derogation of the foregoing is null and void. Pleeco may freely assign or transfer this Agreement. Notwithstanding anything to the contrary, you may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of your assets or shares. This Agreement shall inure to the benefit of each party's successors and permitted assigns. This Agreement, together with the Subscription Plan, and all addenda, schedules, and exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Except as otherwise provided herein, this Agreement may be amended or superseded only by a written instrument signed by both parties. This Agreement shall be governed by the laws of the State of New York, excluding its conflict of laws rules. The parties further agree that the exclusive venue and jurisdiction of any dispute arising or relating to this Agreement shall be a court of competent jurisdiction located in the State of New York, New York County. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement. Neither party shall be in breach of this Agreement if its failure to perform any obligation under this Agreement, except for payment of Fees, is caused by events or conditions beyond that party's reasonable control, including, without limitation, acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or "hacker" attacks, acts of terrorism or governmental demands or requirements. Pre-printed terms and conditions on or attached to any Customer purchase order or other document shall be of no force or effect.