Dimely Terms and Conditions

‍1.   TERMS
1.1. Terms and Commercial Agreements. These Dimely Terms and Conditions (this “Agreement”) are entered into between Kalo Technologies, Inc., the entity that has created the Dimely product, (“Dimely”) and the customer (“Customer”) identified on the applicable Commercial Agreement between Dimely and Customer incorporating this Agreement (the “Commercial Agreement”) as of the effective date set forth in the first Commercial Agreement (“Effective Date”). Customer’s access to and use of the Service is governed by this Agreement and the applicable Commercial Agreement. Any conflict between this Agreement, the Commercial Agreement and any exhibit hereto or linked document, will be resolved in the following order: (a) the Commercial Agreement, (b) the exhibit or linked document; and (c) this Agreement.

1.2. Amendments. Dimely may change this Agreement. If the change to this Agreement will materially impact Customer’s use of the Service, Dimely will provide at least ninety (90) days prior notice before making such changes effective. If such material changes are unacceptable to Customer, Customer may terminate this Agreement upon notice to Dimely, which notice must be received no later than 30 days after such changes are effective, without further liability after the effective date of termination, and receive a pro-rated refund of Customer’s pre-paid Fees (if applicable) based on the number of months remaining in the Service Term. Any other (non-material) change is effective as of the date this Agreement is updated. Customer’s continued use of the Service after the effective date of the changes to this Agreement, will indicate acceptance of such changes.

2.   CERTAIN DEFINED TERMS

2.1. “Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where “control” means ownership of more than percent (50%) of the outstanding voting securities or the ability to control the operations of the entity in question.

2.2. “Authorized User" means Customer’s employees, contractors, and agents authorized by Customer to access and use the Service.

2.3. “Customer Content” means any notifications, text, messages, links, urls, and other content thatCustomer distributes or makes available via the Service.

2.4. “Customer Data” means any personal data that Customer distributes or makes available via theService.

2.5. “Customer Properties” means the applications or websites owned or controlled by Customer that implement Dimely

2.6. “Documentation” means any manuals, instructions, or other documents or materials that Dimely provides to its customers which describe the functionality, features, or requirements of the Services.

2.7. “End Users” means users of the Customer Properties.

2.8.“Sensitive Information” means sensitive personal information, sensitive data, or special categories of personal information as defined under applicable data protection laws. For example, Sensitive Information includes social security numbers or other government identifiers, information related to racial or ethnic origin, political opinions, religion or other beliefs, medical or health information or conditions, criminal background, trade union membership, sexual orientation, and precise geolocation.

2.9. “Service” means collectively: (a) the Dimely website, (b) the Dimely integrations, (c) Dimely’s AI copilot, including the Dimely servers and software used to enable the copilot, (d) the support services, and (e) the related data, reports, apps, technology and content.

2.10. “Service Term” means the term of the applicable Commercial Agreement.

3.   SERVICES

3.1. Access and Use. Subject to the terms and conditions of this Agreement and the Commercial Agreement, Dimely hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services and any corresponding Documentation during the Service Term, solely for its internal use by Authorized Users.

3.2 Implementation. To the extent included in a Commercial Agreement, Dimely will provide the implementation services set forth in the Commercial Agreement.

3.3 Third Party Integrations. If Customer opts to include or enable any optional third party integrations or services made available by the Service in connection with Customer Properties, Customer will be bound by the terms and conditions and privacy policy of such third party. Dimely is not responsible or liable for any third party integrations or services, and the use of any data that Customer authorizes to disclose to them via the Service or otherwise.

3.4. License. Customer grants Dimely a worldwide, royalty-free, non-sublicensable (except solely as required to provide Customer the Service) license, during the Service Term, to (a) use and access the Customer Content, Customer Data and Customer Properties in order to provide the Service to Customer, and (b) create usage data based on Customer’s use of the Service and the Customer Content and Customer Data; provided that such data is aggregated with other customer data and not capable of identifying Customer, any Authorized User, any End User or other individual (“Aggregated Data”).

3.5. Customer Affiliates. Customer Affiliates may further separately purchase and use subscriptions to the Services subject to the terms of this Agreement by entering into a Commercial Agreement directly with Dimely hereunder. This Agreement shall apply to such Affiliates and such Affiliates shall be deemed the “Customer” as contemplated herein.

4.   RESPONSIBILITIES AND RESTRICTIONS

4.1. Responsibilities. Customer will (and will cause its Authorized Users to): (a) comply with all applicable laws and regulations regarding the access and use of the Services, (b) ensure that the transfer and processing of Customer Data under this Agreement is lawful, (c) maintain the confidentiality of Customer’s access information, (d) notify Dimely promptly of any unauthorized use of any password or account or any other known or suspected breach of security, and (f) report to Dimely promptly and use reasonable efforts to stop immediately any copying or distribution of the Services that is known or suspected by Customer or the Authorized Users. Customer is liable for the acts and omissions of all Authorized Users in connection with this Agreement, as well as any access to and use of the Service by any person logging in under an ID registered under Customer’s account or providing and/or receiving Customer Data, Customer content or other information through the Service. Customer is responsible for maintaining the confidentiality of its account access information which includes requiring two-factor authentication of its Authorized Users when accessing the Services. Customer will notify Dimely promptly after discovery of any unauthorized use of any account access information.

4.2. Restrictions. Customer will not (and will cause its Authorized Users not to): (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Services; (ii) modify or create derivative works based on the Services; (iii) create Internet “links” to the Services or “frame” or “mirror” any content provided in connection therewith; (iv) reverse engineer or access the Services in order to monitor the performance or functionality of the Service, to build a product using features, functions or graphics similar to any of the Service, or for any other benchmarking or competitive purposes; (v) copy any features, functions or graphics of the Services; (vi) allow individual Authorized Users to share their account;  (vii) use the Services to: (a) send unsolicited or unlawful messages; (b) send or store infringing, obscene, threatening, harmful, libelous, or otherwise unlawful material, including material harmful to children or violative of privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (d) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (e) attempt to gain unauthorized access to the Service or its related systems or networks;  (viii) provide or disclose to, or permit use of the Service by, persons other than Authorized Users; (ix) impersonate another user or provide false identity information to gain access to or use the Service; or (x) make any representations, warranties, guarantees or similar commitments on behalf of Dimely regarding the Service.

5.   FEES; PAYMENT

5.1. In consideration for using the Service, Customer must pay the fees specified in the applicable Commercial Agreement (the “Fees”).  All Fees are non-refundable unless otherwise expressly set forth in this Agreement. Customer billing information must be accurate and complete at all times. If Customer fails to pay any amounts when due, or Dimely is unable to effect Customer’s payment transaction using the payment method Customer provided, Customer will be deemed in breach of this Agreement. In the event of Customer’s failure to pay, Dimely will notify Customer and may suspend Customer’s access for failure to pay after 30 days of delivery of such notice. Customer is responsible for any fees, including attorneys’ and collection fees, incurred by Dimely in collecting any delinquent amounts. Dimely may assess an additional 1.5% late charge (or the highest amount allowed by law, whichever is lower) per month from the payment due date until paid in full.

5.2. Customer is responsible for paying all sales, services, value added or other similar taxes, duties or charges applicable to this Agreement, other than taxes based on Dimely’s income.

6.   OWNERSHIP

6.1. Customer owns and retains all right, title and interest in and to the Customer Data and Customer Properties (excluding the Services). Except as expressly set forth in this Agreement, nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Customer Data or Customer Properties, by implication. All right, title and interest in and to the Customer Data and Customer Properties (excluding the Services) remains with Customer.

6.2. Dimely owns and retains all right, title and interest in and to the Services, Documentation, Aggregated Data and all feedback or comments Customer provides to Dimely about the Service. Nothing in this Agreement grants any right, title or interest in or to (including any license) any intellectual property rights in or relating to, the Services or Documentation, whether expressly or by implication. All right, title and interest in and to the Service and Documentation remains with Dimely.

7.   TERMINATION

7.1. This Agreement begins on the effective date of the first Commercial Agreement and will continue as long as a Commercial Agreement is in effect.

7.2. Either party may terminate this Agreement and all Commercial Agreements upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach, except that in the event of a breach of the Code of Conduct, Section 4.1 (Responsibilities), Section 4.2 (Restrictions) or 5.1 (Fees; Payment), the cure period is five (5) days.

7.3. Effect of Termination.  Except as set forth in this Agreement, upon any termination of this Agreement:(a) all Fees owed to Dimely will be immediately due and payable; (b) Customer’s right to access and use the Services and Documentation will immediately terminate; and (c) Customer’s license to Dimely immediately terminates.

7.4. Survival.  The following Sections and any other right or obligation that by its nature should survive termination of this Agreement, will survive any termination of this Agreement: 5 (Fees; Payment), 6 (Ownership), 7.3 (Effect of Termination), this 7.4 (Survival), 9 (Confidentiality), 11 (Indemnification), 12 (Limitation), and 13 (Miscellaneous)

8.   REPRESENTATIONS AND WARRANTIES

8.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as an entity under the laws of the jurisdiction of its organization; (b) it has the right, power and authority to enter into this Agreement and to perform its obligations and grant the rights and licenses under this Agreement; and (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized.

8.2. Additional Dimely Representations and Warranties.   Dimely represents and warrants to Customer that Dimely will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.

8.3. Additional Customer Representations and Warranties.  Customer represents and warrants to Dimely that (a) Customer has provided all disclosures and has obtained and will maintain all rights and consents (including from Authorized Users and End Users) required by applicable law to transfer Customer Data to Dimely and for Dimely to use the Customer Data in accordance with this Agreement, including sending communications and messages to End Users, and (b) Dimely’s use of and access to the Customer Data, Customer Content and Customer Properties in accordance with this Agreement and the Commercial Agreement will not violate applicable law or infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third party, including any Authorized User or End User.

8.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS.” Dimely SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. Dimely MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR THE RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR LOSS OF DATA, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

9.   CONFIDENTIALITY

9.1. “Confidential Information” means any proprietary or non-public information shared or made available by a Discloser in connection with this Agreement. Each party (a “Recipient”) shall not (a) use, or permit the use of, the other party’s (a “Discloser”) Confidential Information other than as necessary to perform Recipient’s obligations or exercise its rights under this Agreement and (b) disclose the Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees, officers, directors, contractors, agents and advisors (“Representatives”) who have a need to know for purposes of the Recipients’ exercise of its rights or performance of its obligations under this Agreement and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient acknowledges and agrees that it is responsible and liable for any breach by its Representatives of this section of this Agreement.  Recipient shall exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure, and will not use less than a reasonable degree of care.  The foregoing will not apply to any information that: (i) was or becomes generally known by the public through no fault of Recipient or its Representatives; (ii) was rightfully known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was rightfully, and with authority, disclosed by a third party to Recipient, without restriction; or (iv) Recipient independently develops without use of Discloser’s Confidential Information.  If the Recipient or any of its Representatives is required pursuant to a governmental order or proceeding to disclose any Confidential Information of Discloser, then, to the extent permitted by applicable law, the Recipient shall promptly, and prior to such disclosure, notify the Discloser of such requirement so that the Discloser can seek a protective order or other remedy.

10. DATA PROTECTION

10.1. Each party will comply with all data protection and security laws applicable to it in connection with this Agreement. Each party will implement and maintain reasonable administrative, physical and technical security procedures and practices appropriate to protect the personal information that is under its control or in its possession. Each party will notify the other as soon as reasonably practicable after becoming aware of a personal information security breach with respect to the Services. Each party will promptly investigate such security breach if it occurred on its systems or in another area it is responsible.

10.2. Customer represents and warrants that it will not disclose or make available or accessible to Dimely any Sensitive Information, including via the Service.

11. INDEMNIFICATION

11.1. Dimely will indemnify, defend and hold harmless Customer and its directors, officers, employees, consultants, agents and other representatives (“Customer Indemnitees”), from and against any and all damages, liabilities, losses, costs (including reasonable attorneys’ fees) and other expenses (“Losses”) arising out of any third party claim, demand or proceeding (“Claim”) against any Customer Indemnitee to the extent relating to Dimely’s breach of Section 8 of this Agreement. Dimely has no obligation hereunder to the extent the Claim arose from (i) Customer’s or any Authorized User’s use of the Service other than as permitted under this Agreement; or (ii) the modification of any of the Services by any party other than Dimely or Dimely’s agents.

11.2. Customer will indemnify, defend and hold harmless Dimely, its affiliates, and its and their respective licensors, suppliers, service providers, directors, officers, employees, consultants, agents and other representatives (“Dimely Indemnitees”), from and against any and all Losses arising out of any Claim against any Dimely Indemnitee to the extent alleging or relating to: (a) Customer’s breach of Section 8 of this Agreement, and (b) any allegation that Customer Content, Customer Data, or Customer Properties, or other materials Customer submit to us or transmit via the Service, infringes or misappropriates the intellectual property rights or other rights of any third party or individual, or violates any applicable law.

11.3. Indemnity Process.  Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim and the indemnifying party obtains the indemnified party’s consent); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim.  The indemnified party may participate in the defense of the claim, at the indemnified party’s sole expense (not subject to reimbursement).

12. LIMITATION OF LIABILITY

12.1.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACH OF SECTION 9 (CONFIDENTIALITY), NEITHER PARTY NOR ANY OF ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, IS RESPONSIBLE OR LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE OR THIS AGREEMENT.

12.2.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDING LIABILITY FOR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL MISCONDUCT, ANY BREACH OF SECTION 6 (OWNERSHIP), 9 (CONFIDENTIALITY), AND ANY OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION), EACH PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY IS THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER IN THE FIRST 12 MONTHS FROM THE EFFECTIVE DATE (THE “GENERAL CAP”); PROVIDED, THAT Dimely’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER FOR PERSONAL DATA SECURITY BREACHES AND ALL LIABILITIES WITH RESPECT TO PERSONAL DATA (INCLUDING INDEMNIFICATION RELATING THERETO) IS LIMITED TO TWO TIMES THE GENERAL CAP.
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13. MISCELLANEOUS

13.1.  Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The parties agree that the federal and state courts in San Francisco, California will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.

13.2.  Assignment. Neither party may assign this Agreement without the prior written consent of the other party which consent shall not be unreasonably withheld or delayed, except that Dimely may assign this Agreement without Customer’s consent to an Affiliate or in connection with any sale of all or substantially all of its assets. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees.

13.3.  Customer List. Customer hereby grants Dimely a non-exclusive, non-sublicensable, non- transferable, royalty free license to use Customer’s trade names, trademarks, service marks, logos, domain names, testimonials and other distinctive brand features (the “Customer Marks”) in presentations, marketing materials, customer lists, financial reports and website listings (including links to Customer’s website) for the sole purpose of publicizing Customer’s use of the Services. Dimely will comply with Customer’s guidelines for Customer Marks usage. All use of the Customer Marks, including any goodwill accruing from such use, will inure to the sole and exclusive benefit of Customer.

13.4. Remedies.  The parties’ rights and remedies hereunder are cumulative, except as provided herein.Any breach of this Agreement relating to Section 6 (Ownership) and 9 (Confidentiality) will constitute irreparable harm to the other party for which monetary damages would be inadequate, and accordingly such party may seek injunctive relief an appropriate remedy.

13.5. Export Compliance.  The Services may be subject to U.S. and foreign export and import restrictions.Customer will not and will not allow any export or re-export of any part of the Services, or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re- export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations.  Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.

13.6. Waiver; Severability.  A party’s failure to enforce any provision in this Agreement will not constitute a waiver unless in writing.   If any provision of this Agreement is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible and the remaining provisions will continue in full force.

13.7. No Third-party Beneficiaries.  There are no third party beneficiaries under this Agreement.

13.8. Force Majeure. Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.

13.9. Notice. Notices will be sent to the addresses set forth in the Commercial Agreement and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt via email.  Customer may give notice to Dimely at support@dimely.com. Such notice shall be deemed given when received by Dimely. Customer consents to receive communications from Dimely in an electronic form; and agrees that all terms, conditions, agreements, notices, disclosures, and other communications that Dimely provides to Customer electronically satisfy any legal requirement that such communications would satisfy if they were in writing.

13.10. Relationship. The parties are independent contractors with respect to each other. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.

13.11. Entire Agreement. This Agreement (together with all Commercial Agreements) constitutes the final, exclusive agreement of the parties with respect to its subject matter and replaces and supersedes any prior written or verbal communications, representations, proposals or quotations on that subject matter. No provision of this Agreement will be construed against either party as the drafter thereof. Any preprinted terms on any Customer purchase order have no effect on the terms of this Agreement and are rejected.