Terms of Service

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE FIRST KIND SOFTWARE SERVICE OFFERED BY FIRST KIND SOFTWARE INC., DBA AS First Kind Software (“First Kind Software” OR “COMPANY”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”) OR BY ACCESSING OR USING THE First Kind Software SERVICE IN ANY MANNER, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE First Kind Software SERVICE IN ANY MANNER.

1. DEFINITIONS

"Affiliate" means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party. “Confidential Information” has the meaning set forth in Section 9. “Control” means ownership or control, directly or indirectly, of at least 50% of the voting interests of the subject entity. “Customer Data” means all electronic data or information submitted by Customer in the First Kind Software Service. “Customer Equipment” means Customer’s and its Affiliates’ computer hardware, software and network infrastructure used to access the First Kind Software Service. “Data Protection Laws and Regulations” means all EU/Swiss applicable legislations with respect to the processing of Personal Data, including but not limited to the EU General Data Protection Regulation (2016/679). “Documentation” means the published specifications of the First Kind Software Service, as may be updated or amended from time to time , as determined and provided by First Kind Software to Customer. “Entitlement” means the specific use limitations with respect to Customer’s access to and use of the First Kind Software Service as specified in the corresponding Order Form, such as but not limited to: Initial Term and Authorized User count. “Force Majeure Event” means a natural disaster, actions or decrees of governmental bodies or communications line failure which (i) hinders, delays or prevents a party from performing its obligations, and (ii) is beyond the reasonable control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against. “Initial Term” means the first subscription term period for the First Kind Software Service defined on an Order Form, or if no such term period is defined, twelve (12) months, commencing on the date Customer executes such Order Form. “Order Form” means an online order submitted by Customer through First Kind Software’s designated URL for the First Kind Software Service, or a paper-based or online ordering document for the First Kind Software Service signed by First Kind Software and Customer. “First Kind Software Service” means the First Kind Software online, cloud-based feature flag management solution as further described in the corresponding Documentation. “Renewal Term” means each subscription period after the Initial Term for which the subscription term applicable to an Order Form is extended pursuant to Section 11. “SDK” means First Kind Software’s software development kit for use by Customer’s in connection with the First Kind Software Service. “Seat” means an authorization for a Unique User to use and access the Service; the number of Seats is specified in the corresponding Order Form. “Fees” mean the fees paid by Customer in connection with Customer’s access and use the First Kind Software Service and related standard support during the Term. "Taxes" means any direct or indirect local, state, federal or foreign value-added, sales, use or withholding taxes. “Term” as it relates to an Order Form means the Initial Term and any Renewal Term applicable to each Order Form, and as it relates to this Agreement, is as defined in Section 11 below. “Unique User” means a unique, distinct User authorized by Customer to access or use the First Kind Software Service. "Users" means Customer's and its Affiliates and their respective employees, agents, contractors, service providers or consultants who access or use the First Kind Software Service.

2. First Kind Software SERVICE

Subject to Customer’s payment of the corresponding Fees, Customer may access and use the First Kind Software Service in accordance with this Agreement, and each Order Form. Customer’s access and use of the Service is subject to the Entitlement specified in the corresponding Order Form. Customer acknowledges and agrees that its access and use of the First Kind Software Service requires the use of SDKs. The SDKs are available at and subject to the corresponding open-source terms presented at the following URL: http://www.apache.org/licenses/LICENSE-2.0. Notwithstanding anything to the contrary in this Agreement or any Order Form(s), the warranties, indemnification and associated use rights with respect to the SDKs are as set forth in the applicable open-source license(s), and not the terms and conditions in this Agreement.

3. ACCESS AND USE OF THE First Kind Software SERVICE

  • 3.1 Customer is responsible for obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access or otherwise use the First Kind Software Service.
  • 3.2 Customer agrees to use the First Kind Software Service in compliance with applicable law, and not: (a) resell, sublicense, lease, time-share or otherwise make the First Kind Software Service available to any third party other than to Customer Affiliates if so authorized in the corresponding Order Form; or (b) use the First Kind Software Service to intentionally send or store infringing or unlawful material or material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Further, Customer agrees to comply at all times with the First Kind Software acceptable use policy (“AUP”) made available on the First Kind Software website, as updated from time-to-time.
  • 3.3 Customer agrees to not (a) modify, copy or create derivative works of the First Kind Software Service; (b) reverse engineer the First Kind Software Service; (c) access the First Kind Software Service for the purpose of building a competitive product or service; (d); use the Service in excess of the Entitlement; (e) perform any "mirroring" or "framing" of any part of the First Kind Software Service, or create Internet links to the First Kind Software Service which include log-in information, user names, passwords, and/or secure cookies; (f) use the First Kind Software Service, for purposes of product testing, benchmarking or other comparative analysis; or (g) provide access to the First Kind Software Service to a known competitor of First Kind Software.
  • 3.4 Customer agrees that it is responsible for configuring the First Kind Software Service, including but not limited to determining what Customer Data is collected, stored, used, displayed, and/or exported through the SDK (or any API) based on the private attributes or similar features in the First Kind Software Service.
  • 3.5 IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 3 First Kind Software SHALL INFORM CUSTOMER THEREOF IN WRITING AND MAY SUSPEND CUSTOMER’S ABILITY TO ACCESS OR USE THE First Kind Software SERVICE. First Kind Software MAY ALSO SUSPEND CUSTOMER’S ABILITY TO ACCESS OR USE THE First Kind Software SERVICE IF CUSTOMER IS USING THE SERVICE IN EXCESS OF THE ENTITLEMENT SPECIFIED IN THE CORRESPONDING ORDER FORM.

4. INTELLECTUAL PROPERTY, CUSTOMER DATA AND INFORMATION SECURITY

  • 4.1 Ownership. First Kind Software retains all right, title and interest to all intellectual property rights in and to the First Kind Software Service, the SDK, the Documentation, and all underlying the technology, software, processes, algorithms, user interfaces, know-how and all modifications and derivative works thereof. Customer acknowledges and agrees that the First Kind Software Service is a software-as-a-service offering, and that Customer is not entitled to a copy of the underlying software for the First Kind Software Service.
  • 4.2 Feedback. Customer hereby grant’s First Kind Software a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, create derivative works of, and otherwise commercially exploit any suggestion, feedback or ideas Customer submits to First Kind Software, and Customer acknowledges and agrees that First Kind Software assumes no obligation of confidentiality or nondisclosure, express or implied with respect to such feedback or ideas submitted to First Kind Software.
  • 4.3 Customer Data. Customer hereby grants to First Kind Software a limited license to use the Customer Data as necessary to provide the First Kind Software Service to Customer, and to use anonymized Customer Data to make improvements to First Kind Software’s current and future products and services provided that any such use does not disclose Customer Data. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer acknowledges and agrees that its use of the First Kind Software Service in connection with any personally identifiable information subject to applicable law, is subject to the First Kind Software Data Protection Addendum, made available at the First Kind Software website or otherwise delivered to Customer (the “LD DPA”).

5. FEES

  • 5.1 Unless otherwise specified on an Order Form, the Fees shall be as stated in each Order and shall be payable in advance of the relevant term, and due upon the start date of each term. In the event Customer is paying by credit card as indicated in an Order Form, Customer acknowledges that First Kind Software uses a third-party for the processing of such payments and that such third-party will have access to certain information provided by Customer as a result. For payments made by credit card, Customer’s credit card will be charged at the time the Order Form is placed and thereafter, at the frequency listed in the Order Form, which will continue until this Agreement is terminated. For all other payment methods, Fees shall be due and payable within thirty (30) days of the date of the invoice. Any failure to pay Fees by the due date may result in suspension of Customer's ability to access the First Kind Software Service.
  • 5.2 First Kind Software’s Fees do not include any Taxes, and Customer is responsible for paying all Taxes arising from its purchases hereunder, excluding Taxes based on First Kind Software’s net income, employees, or property. If First Kind Software has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount of such Taxes shall be invoiced to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority in advance. The failure to include Taxes on an invoice does not relieve Customer of its obligation to pay such Taxes as required in the applicable taxing jurisdiction. All amounts payable to First Kind Software under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax. Further, Customer agrees that in the case where Taxes are required to be deducted from payments to First Kind Software, such as but not limited to VAT, GST or similar withholding obligations, Customer will increase the Fees payable to First Kind Software so that First Kind Software receives from Customer (without any liability for Taxes) the amount equal to the total Fees First Kind Software would have received but for such withholding or deductions (the “True Up”).
  • 5.3 In the event Customer exceeds the Entitlement, First Kind Software may suspend Customer’s access and use of the First Kind Software Service until the access and use becomes consistent with the Entitlement, or Customer pays to First Kind Software additional Fees with respect to the same.

6. SUPPORT

Subject to First Kind Software’s receipt of the corresponding Fees with respect to the First Kind Software Services, First Kind Software shall provide to Customer standard support during the Term.

7. REPRESENTATIONS AND WARRANTIES

  • 7.1 Each party represents and warrants that it has all necessary right, title and authority to enter into and perform under this Agreement. Customer warrants that it has the rights to provide and use any and all Customer Data in accordance with the terms of the Agreement and the foregoing and its performance hereunder doesn’t violate any laws.
  • 7.2 First Kind Software warrants that the operation of the First Kind Software Service will substantially conform in all material respects to the Documentation during the Term. Customer will provide prompt written notice of any non-conformity.
  • 7.3 As Customer’s sole and exclusive remedy, and First Kind Software’s entire liability for any breach of the foregoing warranty, First Kind Software will use commercially reasonable efforts to remedy the nonconformance.
  • 7.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY NOR ITS SUPPLIERS MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. First Kind Software DOES NOT WARRANT THE OPERATION OF THE First Kind Software SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

8. INDEMNIFICATION

Customer shall defend, indemnify and hold First Kind Software and its Affiliates (collectively, “First Kind Software Group”) harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against First Kind Software and any member of First Kind Software Group, by a third party alleging that the Customer Data created and stored by Customer in the First Kind Software Service or otherwise provided to First Kind Software in connection with the Agreement (i) violates any applicable law or regulation; (ii) infringes any U.S. patent, copyright or other intellectual property right of a third party; and/or (iii) arising out of Section 7.4. First Kind Software agrees to (a) promptly give written notice of the Claim to Customer (provided that the obligations under this Section 8 shall not be reduced by the failure to give such notice except to the extent Customer is materially prejudiced by such failure); (b) give Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases First Kind Software of all liability and obligation); and (c) provide to Customer, at Customer's cost, all reasonable assistance.

9. CONFIDENTIALITY

  • 9.1 As used herein, "Confidential Information" means all non-public information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential, including the terms and conditions of this Agreement, First Kind Software’s technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any confidentiality obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any confidentiality obligation owed to Disclosing Party or access to or reliance on Disclosing Party’s Confidential Information; or (iv) is received from a third party without breach of any confidentiality obligation owed to Disclosing Party.
  • 9.2 Receiving Party shall not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except as allowed by the terms of this Agreement or with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own Confidential Information of like kind (but in no event using less than reasonable care). First Kind Software represents and warrants that it will maintain the confidentiality of Customer Data and, except as required by applicable law, will not disclose Customer Data to any third party for any purpose other than to provide the First Kind Software Service. However, First Kind Software may compile aggregate data related to Customer’ s usage of the First Kind Software Service and may use and/or disclose such aggregate data to third parties, to the extent that Customer is not identified as the source of such data and as long as the data does not reveal the identity, whether directly or indirectly, of any individual, or specific data entered by or relating to any individual. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
  • 9.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with (a) prior written notice of such compelled disclosure (to the extent legally permitted) and (b) reasonable assistance in contesting the disclosure, at Disclosing Party's option and cost. Any actual disclosure shall be limited to the minimum amount of information necessary to comply with the disclosure demand as advised by legal counsel.
  • 9.4 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of confidentiality protections hereunder, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
  • 9.5 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information and, upon request and to the extent practicable, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.

10. LIMITATION OF LIABILITY

  • 10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL First Kind Software’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID OR PAYABLE TO First Kind Software DURING THE (12) TWELVE MONTHS PRIOR TO THE DATE OF THE CLAIM.
  • 10.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL First Kind Software OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. TERM AND TERMINATION

  • 11.1 This Agreement commences on the Effective Date and unless terminated as otherwise provided herein, shall continue until all Order Forms entered into under this Agreement have expired or been terminated. The Initial Term applicable to each Order Form commences upon the last signature date of such Order Form and upon expiration of the Initial Term, the First Kind Software Service subscription term applicable to such Order Form shall continue to renew for consecutive 12-month periods, unless either party gives notice to the other party of its desire to not renew at least sixty (60) days prior to the end of the then-current Term.
  • 11.2 A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement if such breach remains uncured at the expiration of such period; or (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.
  • 11.3 The parties’ rights and obligations under Sections 4, 5, 7.5, 8-11, and 12 survive termination of this Agreement.
  • 11.4 Upon the effective date of termination of this Agreement Customer’s authorization to access and use the First Kind Software Service will cease. Thirty 30 days following the termination of this Agreement First Kind Software will have no obligation to maintain any Customer Data and will not retain copies or records of Customer Data in its system or otherwise.

12. GENERAL

  • 12.1 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third-party beneficiaries to this Agreement.
  • 12.2 Notices shall be in writing and delivered by nationally recognized overnight delivery service or certified or registered U.S. Mail, and are effective upon receipt.
  • 12.3 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and First Kind Software. To the extent of any conflict between this Agreement and any other Exhibit or document referenced herein, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or similar ordering document (other than a Statement of Work or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
  • 12.4 Customer hereby authorizes First Kind Software to list Customer’s name and logo on First Kind Software’s website and in related marketing materials to identify Customer as a First Kind Software customer, provide that no Customer Confidential Information is disclosed. Additionally, Customer agrees to participate in customer reference and related programs, to the extent so authorized in writing by Customer (email shall suffice).
  • 12.5 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
  • 12.6 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to a natural disaster, pandemics, civil unrest, actions or decrees of governmental bodies or communications failure which (i) hinders, delays or prevents a party in performing any of its obligations, (ii) is beyond the control of, and without the fault or negligence of, such party, or (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against (“Force Majeure Event”).
  • 12.7 Neither party may assign or transfer any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (i) First Kind Software may assign or transfer this Agreement in its entirety (including all Order Forms hereunder), in connection with a merger, reorganization, or sale of all or substantially all assets or equity with respect to this Agreement . Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
  • 12.8 Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the provision and use of the First Kind Software Service.
  • 12.9 This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. Any dispute arising hereunder shall be brought exclusively in the courts located in the Northern District of California. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.