Kaltura Customer Agreement
This Kaltura Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between Kaltura, Inc. (“Kaltura,” “we,” “us,” or “our”) and you or the entity you represent (“you”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Service Offerings or Execute an Order Form referencing this Agreement (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in this Agreement.
- Use of the Service Offerings.
1.1 Generally. You may access and use the Service Offerings in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Service Offerings, including the Acceptable Use Policy and the other Policies as defined in Section 14.
1.2 Your Account. To access the Services, you must create a Kaltura account associated with a valid e-mail address. Unless you activate a Kaltura Multi-Account, you may only create one account per legal entity. You are responsible for all activities that occur under your account(s), regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our affiliates are not responsible for unauthorized access to your account. You will contact us immediately if you believe an unauthorized third party may be using your account or if your Account Information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 7.
1.3 Support to You. If you would like support for the Services other than the support we generally provide to other users of the Services without charge, you may contact-us for premium support packages.
1.4 Third Party Content. Third Party Content, such as software applications or application services provided by third parties, may be made available directly to you by other companies or individuals under separate terms and conditions, including separate fees and charges. Because we may not have tested or screened the Third Party Content, your use of any Third Party Content is at your sole risk.
We may change, discontinue, or deprecate any of the Service Offerings (including the Service Offerings as a whole) or change or remove features or functionality of the Service Offerings from time to time. We will notify you of any material change to or discontinuation of the Service Offerings. However, if we change, discontinue or deprecate any APIs for the Services, we will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 12 months after the change, discontinuation, or deprecation (except if such support (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would violate the law or requests of governmental entities).
- Security and Data Privacy.
3.1 Kaltura Security. Without limiting the scope of Section 10 or your obligations under Section 4.2, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.
3.2 Data Privacy. You consent to the processing and storage of Your Content in, and transfer of Your Content into, the U.S. To the the extent we process any Personal Data (as such term is defined in the Kaltura Customer DPA) for or on behalf of You in the course of providing the Service Offerings, the Kaltura Customer DPA is hereby incorporated by reference and shall apply. You will ensure that You are entitled to transfer the relevant personal data to us, so that we may lawfully use, process, and transfer the Personal Data in accordance with the Service Offerings on Your behalf. You will ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer, to the extent required by Your country’s data protection laws and regulations.
3.3 School Accounts. Kaltura maintains policies and procedures designed to comply with applicable requirements of student privacy laws including, without limitation, GDPR and the Family Educational Rights and Privacy Act (FERPA) and applicable state laws (collectively, the “Student Privacy Laws”). The Student Privacy Laws may provide students or their parents with certain rights in their personal information. If you are a parent or student and you have questions about the Student Privacy Laws or your related rights, please contact your school administration. Kaltura will not use any student data for marketing or advertising purposes, or any other commercial purpose, except to provide the Service Offerings to you and to your End Users. If you are a school, school district, school administrator or a teacher — you represent and warrant that you have been duly authorized by your school or school district to create an account, to use the Services Offerings, and to agree to these contract terms. You further agree to use your account solely for educational purposes and solely for the benefit of your school or school district and its students. To the extent Your Content includes any “education records” (as defined in FERPA), Kaltura shall be deemed a “school official” (as defined in FERPA), and Kaltura’s use and maintenance of such education records shall be solely for the purpose of providing the Service Offerings to you and to your End Users in accordance with your instructions.
- Your Responsibilities.
4.1 Your Content. You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
(a) the technical operation of Your Content, including ensuring that calls you make to any Service are compatible with then-current APIs for that Service;
(b) compliance of Your Content with the Acceptable Use Policy, the other Policies, and the law;
(c) any claims relating to Your Content; and
(d) promptly and properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violate such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.
4.2 Other Security and Backup. You are responsible for properly configuring and using the Service Offerings and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving Your Content. Kaltura log-in credentials and private keys generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
4.3 End User Violations. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Service Offerings. You are responsible for End Users’ use of Your Content and the Service Offerings, whether authorized or unauthorized. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User’s access to Your Content and the Service Offerings.
4.4 End User Support. You are responsible for providing customer support or service (if any) to End Users. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide support or services.
- Fees and Payment.
5.1. Service Fees. We calculate and bill fees and charges monthly. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment, or less frequently, at our discretion. You will pay us the applicable fees and charges for use of the Service Offerings as described on the Kaltura Site using one of the payment methods we support. You agree that Kaltura may charge to your credit card (or other payment mechanism selected by you and approved by Kaltura) all amounts due and owing for the Service Offerings, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with your account. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the Kaltura Site unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services by giving you at least 30 days’ advance notice. We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
5.2 Taxes. All fees and charges payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You will provide us any information we reasonably request to determine whether we are obligated to collect VAT from you, including your VAT identification number. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing us with legally sufficient tax exemption certificates for each taxing jurisdiction. We will apply the tax exemption certificates to charges under your account occurring after the date we receive the tax exemption certificates. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
5.3 Order Forms. Notwithstanding Section 5.1 above, if you purchase a subscription to the Service Offerings via an Order Form signed by you and us then the billing terms set forth in this Section 5.3 and the applicable Order Form will apply. Minimum commitments in Order Forms are (a) based on Services purchased and not actual usage; (b) non-cancelable; and (c) cannot be decreased during the specified term. Fees paid for minimum commitments and actual usage are not refundable. Your payments of fees are neither (x) contingent on the delivery of any future functionality or features nor (y) dependent on statements not set forth in the Agreement.
- Temporary Suspension.
6.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine:
(a) your or an End User’s use of or registration for the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) may adversely impact the Service Offerings or the systems or Content of Kaltura or any other Kaltura customer, (iii) may subject us, our affiliates, or any third party to liability, or (iv) may be fraudulent;
(b) you are, or any End User is, in breach of this Agreement, including if you are delinquent on your payment obligations for more than 15 days;
(c) the credit card you authorized us to charge in connection with your account is invalid or otherwise unavailable for the processing of payments; or
(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Service Offerings:
(a) you remain responsible for all fees and charges you have incurred through the date of suspension;
(b) you remain responsible for any minimum commitments specified in an Order Form;
(c) you remain responsible for any applicable fees and charges for any Service Offerings to which you continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension; and
(d) you will not receive a refund of any pre-paid fees for the applicable service period.
Our right to suspend your or any End User’s right to access or use the Service Offerings is in addition to our right to terminate this Agreement pursuant to Section 7.2.
- Term; Termination.
7.1. Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 7.2.
(a) Termination for Convenience. You may terminate this Agreement for any reason by: (i) providing us notice and (ii) closing your account for all Services for which we provide an account closing mechanism.
(b) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the 30 day notice period.
(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause, if any act or omission by you or any End User results in a suspension described in Section 6.1, (B) if our relationship with a third party partner who provides software or other technology we use to provide the Service Offerings expires, terminates or requires us to change the way we provide the software or other technology as part of the Services, (C) if we believe providing the Service Offerings could create a substantial economic or technical burden or material security risk for us, (D) in order to comply with the law or requests of governmental entities, or (E) if we determine that use of the Service Offerings by you or any End Users or our provision of any of the Services to you or any End Users has become impractical or unfeasible for any legal or regulatory reason.
7.3. Effect of Termination. Upon any termination of this Agreement:
(i) all your rights under this Agreement immediately terminate;
(ii) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
(iii) you will immediately return or, if instructed by us, destroy all Kaltura Content in your possession;
(iv) you will not receive a refund of any pre-paid fees, including without limitation any pre-purchased credits or minimum commitments;
(v) you remain responsible for any minimum commitments specified in an Order Form; and
(vi) Sections 4.1, 5.2, 7.3, 8 (except the license granted to you in Section 8.3), 9, 10, 11, 13 and 14 will continue to apply in accordance with their terms.
- Proprietary Rights.
8.1 Your Content. As between you and us, you, your End Users or your licensors own all right, title, and interest in and to Your Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you or your licensors to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Service Offerings to you and any End Users.
8.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Your Submissions; (b) you have all rights in Your Content and Your Submissions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content, Your Submissions or End Users’ use of Your Content, Your Submissions or the Services Offerings will violate the Acceptable Use Policy.
8.3 Service Offerings License. As between you and us, we or our affiliates or licensors own and reserve all right, title, and interest in and to the Service Offerings. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Term: (i) access and use the Services solely in accordance with this Agreement; and (ii) copy and use the Kaltura Content solely in connection with your permitted use of the Services. Except as provided in this Section 8.3, you obtain no rights under this Agreement from us or our licensors to the Service Offerings, including any related intellectual property rights.
8.4 License Restrictions. Neither you nor any End User may use the Service Offerings in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User may, or may attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service Offerings (except to the extent software included in the Service Offerings are provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings, (c) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service Offerings (unless you are expressly authorized to do so in an Order Form). All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement.
8.5 Suggestions. If you provide any Suggestions to us or our affiliates, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
9.1. General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any End Users’ use of the Service Offerings (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process in relation to any of the claims described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
9.2. Process. We will promptly notify you of any claim subject to Section 9.1, but our failure to promptly notify you will only affect your obligations under Section 9.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” WE AND OUR AFFILIATES AND LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD PARTY CONTENT, INCLUDING ANY WARRANTY THAT THE SERVICE OFFERINGS OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT OR THE THIRD PARTY CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
- Limitations of Liability.
WE AND OUR AFFILIATES OR LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE OFFERINGS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLAS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
- Modifications to the Agreement.
We may modify this Agreement (including any Policies) at any time by posting a revised version on the Kaltura Site or by otherwise notifying you in accordance with Section 13.6. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service Offerings after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Kaltura Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.
13.1 Confidentiality and Publicity. You may use Kaltura Confidential information only in connection with your use of the Service Offerings as permitted under this Agreement. You will not disclose Kaltura Confidential Information during the Term or at any time during the 5 year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Kaltura Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Service Offerings without our prior written consent. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
13.2 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.3 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Subject to the provisions of Section 13.1, both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
13.4 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
13.5 Import and Export Compliance. You acknowledge that the Service Offerings, or a portion thereof, is subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774, of the United States and may be subject to other applicable country export control and trade sanctions laws (“Export Control and Sanctions Laws”). Kaltura will provide the U.S. export classification(s) applicable to its Services upon request. You and your End Users may not access, use, export, re-export, divert, transfer or disclose any portion of the Service Offerings or any related technical information or materials, directly or indirectly, in violation of Export Control and Sanctions Laws. You represent and warrant that: (i) you and your End Users (a) are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including without limitation Cuba, Iran, North Korea, Syria, and the Crimea region of Ukraine) and that you and your End Users will not access or use the Service Offerings, or export, re-export, divert, or transfer the Service Offerings, or any part thereof, in or to such countries or territories; (b) are not persons, or owned 50% or more, individually or in the aggregate by persons, identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders Lists; and (c) are not persons on the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists; (ii) you and your End Users located in China, Russia, or Venezuela are not Military End Users and will not put the Service Offerings to a Military End Use, as defined in 15 C.F.R. 744.21; (iii) Your Content is not subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control and Sanctions Laws; and (iv) you and your End Users will not take any action that would constitute a violation of, or be penalized under, U.S. antiboycott laws administered by the U.S. Department of Commerce or the U.S. Department of the Treasury. You are solely responsible for complying with the Export Control and Sanctions Laws and monitoring them for any modifications.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Kaltura Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Kaltura Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact Kaltura as follows: (i) by facsimile transmission to + 1 (646) 560 5579; or (ii) by personal delivery, overnight courier or registered or certified mail to Kaltura Inc., 250 Park Avenue South, New York, NY 10003. We may update the facsimile number or address for notices to us by posting a notice on the Kaltura Site. Notices provided by personal delivery will be effective immediately. Notices provided by facsimile transmission or overnight courier will be effective one business day after they are sent. Notices provided by registered or certified mail will be effective three business days after they are sent.
(c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
13.7 Assignment. You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.7 will be void. Kaltura may assign this Agreement or any of its rights or obligations hereunder without requiring your consent, (a) to an affiliate, or (b) to any third party acquiring all or substantially all of the assets relating to this Agreement or a controlling interest in the voting stock or voting interest of Kaltura. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
13.8 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
13.9 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effectuate the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
13.10 Contracting Entity. In the event your Kaltura account reflects a bill to/sold to address in the United Kingdom or European Union, the contracting entity under this Agreement will be Kaltura Europe Ltd., a wholly-owned subsidiary of Kaltura organized under the laws of England and Wales.
13.11 Government Terms. We provide the Service Offerings, including related software and technology, for ultimate federal government end use solely in accordance with this Agreement. If you (or any of your End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service Offerings, any part thereof, or any related documentation of any kind, including technical data, software, and manuals, is restricted by this Agreement. All other use is prohibited and no rights other than those provided in this Agreement are conferred. The Service Offerings were developed fully at private expense.
13.12 Agreement to Arbitrate; Waiver of Class Action. If You are located in the United States, You agree to resolve disputes only on an individual basis, through arbitration pursuant to the provisions set forth in Exhibit A. The Parties expressly waive any right to bring any action, lawsuit, or proceeding as a class or collective action, private attorney general action, or any other proceeding in which any party acts or proposes to act in a representative capacity.
13.13 Governing Law; Venue. This Agreement shall be governed by and construed under the laws of the State of New York. Except as provided in Section 13.12 (Agreement to Arbitrate), any legal suit, action, or proceeding arising out of or related to this Agreement or the Service Offerings shall be instituted in either the state or federal courts of New York, NY and we each consent to the personal jurisdiction of these courts.
13.14 Entire Agreement; English Language. This Agreement includes the Policies and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of this Agreement contain our and our affiliates’ entire obligation regarding the security, privacy, and confidentiality of Your Content. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control.
“Acceptable Use Policy” means the policy currently available at https://corp.kaltura.com/legal/tos/acceptable-use-policy, as it may be updated by us from time to time.
“Account Information” means information about you that you provide to us in connection with the creation or administration of your Kaltura account. For example, Account Information includes names, usernames, phone numbers, email addresses, and billing information associated with your Kaltura account.
“API” means an application program interface.
“Content” means software (including machine images), data, text, audio, video, or images.
“Documentation” means the developer guides, getting started guides, user guides, quick reference guides, and other technical and operations manuals and specifications for the Services located at the Kaltura Site, as such documentation may be updated by us from time to time.
“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Service Offerings under your account.
“Kaltura Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Kaltura Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Kaltura Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Kaltura Confidential Information.
“Kaltura Content” means Content we or any of our affiliates make available in connection with the Services or on the Kaltura Site to allow access to and use of the Services, including Documentation; sample code; software libraries; command line tools; and other related technology. Kaltura Content does not include the Services.
“Kaltura Customer DPA” means the terms and conditions of the data processing agreement available at https://corp.kaltura.com/Kaltura-data-processing-agreement.
“Kaltura Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Kaltura and its affiliates that we may make available to you in connection with this Agreement.
“Kaltura Site” means http://corp.kaltura.com/ and any successor or related site designated by us.
“Order Form” means an ordering document supplied by Kaltura that references this Agreement.
“Policies” means the Acceptable Use Policy, all restrictions described in the Kaltura Content and on the Kaltura Site, and any other policy or terms referenced in or incorporated into this Agreement.
“Services” means all Kaltura products and services that you order from Kaltura via the Kaltura Site, your use of your Kaltura account, or pursuant to an Order Form signed by you and Kaltura. This also includes Kaltura services provided to you on a trial basis or otherwise free of charge.
“Service Offerings” means the Services (including associated APIs), the Kaltura Content, the Kaltura Marks, the Kaltura Site, and any other product or service provided by us under this Agreement. Service Offerings do not include Third Party Content.
“Suggestions” means all suggested improvements to the Service Offerings that you provide to us.
“Term” means the term of this Agreement described in Section 7.1.
“Third Party Content” means Content made available to you by any third party on the Kaltura Site or in conjunction with the Services.
“Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your Kaltura account, any computational results that you or any End User derive from the foregoing through their use of the Services and any integrated services that you offer to your End Users leveraging the Service Offerings. Your Content does not include Account Information.
Last updated: August 1, 2021
- Disputes. A dispute is any controversy between you and Kaltura concerning the Service Offerings, the price of the Service Offerings, your account, Kaltura’s advertising, marketing, or communications, your purchase transaction or billing, or any term of this Agreement, under any legal theory including contract, warranty, tort, statute, or regulation, except disputes relating to the enforcement or validity of your or Kaltura’s intellectual property rights. As part of the best efforts process to resolve disputes, and prior to initiating arbitration proceedings, each party agrees to provide notice of the dispute to the other party, including a description of the dispute, what efforts have been made to resolve it, and what the disputing party is requesting as resolution. Notices to us should be sent to [email protected]; we will send notices to you at the email address associated with your account.
- Arbitration Procedure. Disputes not resolved pursuant to Section A above shall be resolved through arbitration. The American Arbitration Association (“AAA”) will conduct any arbitration under its Commercial Arbitration Rules. For more information, see www.adr.org. Arbitration hearings will take place in New York, NY. A single arbitrator will be appointed. The arbitrator must: (a) follow all applicable substantive law; (b) follow applicable statutes of limitations; (c) honor valid claims of privilege; and (d) issue a written decision including the reasons for the award. The arbitrator may award damages, declaratory or injunctive relief, and costs (including reasonable attorneys’ fees). Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. Under AAA Rules, the arbitrator rules on his or her own jurisdiction, including the arbitrability of any claim; however, a court has exclusive authority to enforce the prohibition on arbitration on a class-wide basis or in a representative capacity.
- Arbitration Fees. If you are unable to afford the arbitration costs, Kaltura will advance those costs to you, subject to the arbitrator’s determination if costs should be reimbursed to Kaltura if Kaltura prevails. For disputes involving more than $75,000, the AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
- Conflict with AAA Rules. This Agreement governs if there is a conflict with the AAA’s Commercial Arbitration Rules.
- Requirement to File Within One Year. Notwithstanding any other statute of limitations, a claim or dispute under this Agreement must be noticed for arbitration within one year of when it could first be filed, or such claim will be permanently barred.
- Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts will not be arbitrated but will be resolved in court, with the balance resolved through arbitration. If any provision of this Exhibit A is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to as nearly as possible achieve the original intent of this Exhibit, inclusive of the severed provision.