Terms of Service for Kaleidosim Cloud Platform
Effective date: April 17, 2023
These Kaleidosim Cloud Platform Terms of Service (the “Agreement”) are entered into by Kaleidosim Technologies AG (“Kaleidosim”) and the entity or person agreeing to these terms (“Customer”) and govern Customer’s access to and use of the Services.
This Agreement is effective when Customer clicks to accept it (the “Effective Date”) or when Customer purchases any computational resources with Kaleidosim or any official Ka-leidosim Reseller. If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agree-ment.
1. Provision of the Services.
1.1 Services Use. During the Term, Kaleidosim will provide the Services in accordance with the Agreement, and Customer may use the Services in accordance with the Agreement.
1.2 Kaleidosim Admin Interface. If applicable, Customer will have access to the Kaleidosim Admin Interface, through which Customer may manage its use of the Services.
1.3 Accounts. Customer must have a Kaleidosim Account to use the Services and is respon-sible for the information it provides to create the Account, the security of its passwords for the Account, and for any use of its Account. Kaleidosim has no obligation to provide multi-ple accounts to Customer.
(a) To the Services. Kaleidosim may make changes to the Services or any portion of them from time to time in Kaleidosim’s sole discretion. Kaleidosim will inform Customer if Ka-leidosim makes a material change to the Services that has a material impact on Customer’s use of the Services provided that Customer has subscribed with Kaleidosim to be informed about such change.
(b) To the Agreement. Kaleidosim may make changes to this Agreement and pricing from time to time in Kaleidosim’s sole discretion. Unless otherwise noted by Kaleidosim, materi-al changes to the Agreement will become effective 30 days after they are posted, except to the extent the changes apply to new functionality or are required by applicable law, in which case they will be effective immediately. If Customer does not agree to the revised Agreement, Customer may stop using the Services. Customer may also terminate this Agreement for convenience under Section 8.3. Customer’s continued use of the Services after such material change will constitute Customer’s consent to such changes. Kaleidosim will post any modification to this Agreement to its Webpage.
(c) Discontinuation of Services. Kaleidosim may discontinue the Services or any portion of them in Kaleidosim’s sole discretion. Kaleidosim will notify Customer at least one month before discontinuing any Service (or associated material functionality) unless Kaleidosim replaces such discontinued Service or functionality with a materially similar Service or functionality. Nothing in this Section 1.4(c) limits Kaleidosim’s ability to make changes required to comply with applicable law, address a material security risk, or avoid a substan-tial economic or material technical burden. This Section 1.4(c) does not apply to pre-general availability Services, offerings, or functionality.
1.5 Software. Kaleidosim may make third-party software available to the Customer through the Kaleidosim Cloud Platform. Customer’s use of any third-party software is subject to such software’s licensing terms.
2. Payment Terms.
2.1 CPU Hours.
(a) Customer must purchase CPU Hours in order to use the Services. All purchases require pre-payment. There are three models for purchasing CPU Hours as specified on the Pricing Page: https://kaleidosim.com/pricing/
(I) Specific number of CPU Hours: The Customer may purchase a specific number of CPU Hours for use within a specified time period. Once the specified time period has elapsed, any unused CPU Hours will expire and cannot be carried over. If not otherwise specified, the maximum time period for expiration of purchased CPU Hours is: 365 days.
(II) One-time package of CPU Hours: The Customer may purchase a one-time package of CPU Hours for use within a specified time period. Once the specified time period has elapsed, any unused CPU Hours will expire and cannot be carried over. If not otherwise specified, the maximum time period for expiration of purchased CPU Hours is: 365 days.
(III) Recurrent package of CPU Hours: The Customer may purchase a recurrent package of CPU Hours that will renew at a specified time interval for use within a specified time peri-od. Once the specified time period has elapsed, any unused CPU Hours will expire and can-not be carried over. The Customer may cancel the recurrent package of CPU Hours at any time before the next renewal date. If not otherwise specified, the maximum time period for expiration of purchased CPU Hours is: 365 days.
The Fees for the CPU Hours and the packages, the specified time period for their use, and the renewal interval for recurrent packages are set out on the Pricing Page.
(b) Customer will pay all Fees in the currency stated in Kaleidosim’s invoice. Payment must be made by wire transfer or credit card as agreed between the parties. All Fees are due as stated in the invoice. Customer’s obligation to pay all Fees is non-cancellable. Kaleidosim’s measurement of Customer’s use of the Services (CPU Hours) is final. Kaleidosim has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by Kaleidosim.
(a) Customer is responsible for any Taxes, and will pay Kaleidosim for the Services without any reduction for Taxes. If Kaleidosim is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Kaleidosim, unless Cus-tomer provides Kaleidosim with a timely and valid tax exemption certificate in respect of those Taxes.
(b) Customer will provide Kaleidosim with any applicable tax identification information that Kaleidosim may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Kaleidosim for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.
2.3 Payment Disputes & Refunds. Any payment disputes must be submitted before the pay-ment due date. If the parties determine that certain billing inaccuracies are attributable to Kaleidosim, Kaleidosim will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Kaleidosim will apply the credit memo amount to a disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. Re-funds (if any) are at Kaleidosim’s discretion and will only be in the form of credit for the Services. Nothing in this Agreement obligates Kaleidosim to extend credit to any party.
2.4 Delinquent Payments; Suspension. Late payments may bear interest at the rate of 5% per year from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Kaleidosim in collecting such delinquent amounts. Further, if Customer’s payment for the Services is overdue, Kaleidosim may Suspend the Services.
2.5 No Purchase Order Number Required. Customer is obligated to pay all applicable Fees without any requirement for Kaleidosim to provide a purchase order number on Kaleido-sim’s invoice (or otherwise).
2.6 Kaleidosim Cloud Partner. This Section 2 does not apply to Services sold to Customer by a Kaleidosim Cloud Partner.
3. Customer Obligations.
3.1 Compliance. Customer will (a) ensure that Customer and its End Users’ use of the Ser-vices complies with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and (c) promptly notify Kalei-dosim of any unauthorized use of, or access to, the Services, Account, or Customer’s pass-word of which Customer becomes aware. Kaleidosim reserves the right to investigate any potential violation of the AUP by Customer, which may include reviewing Customer Data or Projects.
3.2 Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, or create a derivative work of the Services; (b) reverse engineer, decompile, translate, disas-semble, or otherwise attempt to extract any or all of the source code of, the Services (except to the extent such restriction is expressly prohibited by applicable law); (c) sell, resell, sub-license, transfer, or distribute any or all of the Services; or (d) access or use the Services (i) for High Risk Activities; (ii) in violation of the AUP; (iii) in a manner intended to avoid incurring Fees (including creating multiple Accounts, or Projects to simulate or act as a sin-gle Account, or Project, respectively); (iv) to engage in cryptocurrency mining without Ka-leidosim’s prior written approval; (v) to operate or enable any telecommunications service that allows End Users to place calls or to receive calls from any public switched telephone network (vii) in a manner that breaches, or causes the breach of, applicable laws, including Export Control Laws; or (viii) to transmit, store, or process health information subject to United States HIPAA.
3.3 Documentation. Kaleidosim may provide Documentation for Customer’s use of the Ser-vices, including Documentation regarding the Kaleidosim API.
4.1 AUP Violations. If Kaleidosim becomes aware that Customer’s or any End User’s use of the Services violates the AUP, Kaleidosim will notify Customer and request that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Kaleido-sim’s request, then Kaleidosim may suspend all or part of Customer’s use of the Services until the violation is corrected.
4.2 Other Suspension. Notwithstanding Section 4.1, Kaleidosim may immediately Suspend all or part of Customer’s use of the Services if (a) Kaleidosim reasonably believes Custom-er’s or any End User’s use of the Services could adversely impact the Services, other cus-tomers’ or their end users’ use of the Services, or the Kaleidosim network or servers used to provide the Services, (b) there is suspected unauthorized third-party access to the Services, or (c) Kaleidosim reasonably believes that immediate Suspension is required to comply with any applicable law. Kaleidosim will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer’s request, Kaleidosim will, unless prohibited by applicable law, notify Customer of the basis for the Suspension as soon as is reasonably possible.
5. Intellectual Property Rights; Protection of Customer Data; Feedback.
5.1 Intellectual Property Rights. Except as expressly stated in this Agreement, this Agree-ment does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellec-tual Property Rights in Customer Data, and Kaleidosim owns all Intellectual Property Rights in the Services.
5.2 Protection of Customer Data. Kaleidosim will only access, use, and otherwise process Customer Data for the purpose of providing the Services and will not access, use, or process Customer Data for any other purpose. The Data Processing Agreement attached to this Agreement shall apply with regard to the processing of Customer Personal Data.
5.3 Deletion of Customer Data. Kaleidosim reserves the right to permanently delete Cus-tomer Data associated with any Project that has not been subject to any processing through the Services for more than 60 days.
5.4 Customer Feedback. At its option, Customer may provide feedback or suggestions about the Services to Kaleidosim (“Feedback”). If Customer provides Feedback, then Kaleidosim and its Affiliates may use that Feedback without restriction and without obligation to Cus-tomer.
6. Technical Support Services.
6.1 By Customer. Customer is solely responsible for technical support of its Projects.
6.2 By Kaleidosim. Subject to payment of applicable Fees and the remainder of this Section 6.2, Kaleidosim will provide technical support services. The level of technical support is specified on the Pricing Page and depends on the model and package under which the Cus-tomer has bought CPU Hours in accordance with Section 2.1(a). At Kaleidosim’s sole dis-cretion, Kaleidosim may or may not provide technical support services to Customers that purchase a specific number of CPU Hours in accordance with Section 2.1(a)(I). .
7. Confidential Information.
7.1 Obligations. The recipient will only use the disclosing party’s Confidential Information to exercise the recipient’s rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the disclosing party’s Confidential In-formation. The recipient may disclose Confidential Information only to its Affiliates, em-ployees, agents, or professional advisors (“Delegates”) who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential In-formation only to exercise rights and fulfill obligations under this Agreement.
7.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent re-quired by applicable Legal Process; provided that the recipient or its Affiliate uses commer-cially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party’s reasonable requests re-garding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in a violation of Legal Process; (ii) obstruct a governmental investigation; or (iii) lead to death or serious physical harm to an individual.
8. Term and Termination.
8.1 Agreement Term. The term of this Agreement (the “Term”) will begin on the Effective Date and continue until the Agreement is terminated as stated in this Section 8.
8.2 Termination for Breach. To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
8.3 Termination for Convenience. Customer may stop using the Services at any time. Cus-tomer may terminate this Agreement for its convenience at any time on prior written notice and, upon termination, must cease use of the applicable Services and any pre-paid but un-used CPU Hours will immediately expire. Kaleidosim may terminate this Agreement for its convenience at any time with 30 days’ prior written notice to Customer and any pre-paid but unused CPU Hours will expire upon lapse of the 30-day notice period.
8.5 Termination Due to Applicable Law. Kaleidosim may terminate this Agreement imme-diately on written notice if Kaleidosim reasonably believes that (a) continued provision of any Service used by Customer would violate applicable law(s), including Export Control Laws.
8.6 Effect of Termination. If the Agreement is terminated, then (a) all rights and access to the Services will terminate (including access to Customer Data, if applicable), unless other-wise described in this Agreement, and (b) all Fees owed by Customer to Kaleidosim are immediately due upon Customer’s receipt of the final electronic bill or as stated in the final invoice.
Customer may state publicly that it is a Kaleidosim customer and display Kaleidosim Brand Features in accordance with written confirmation by Kaleidosim. Kaleidosim may use Cus-tomer’s name and Brand Features in online or offline promotional materials of the Services in accordance with written confirmation by Customer. Each party may use the other party’s Brand Features only as permitted in the Agreement. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Fea-tures.
10. Representations and Warranties.
Each party represents and warrants that (a) it has full power and authority to enter into the Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable.
11. Disclaimer. Except as expressly provided for in the Agreement, Kaleidosim does not make and expressly disclaims to the fullest extent permitted by applicable law (a) any warranties of any kind, whether express, implied, statutory, or otherwise, includ-ing warranties of merchantability, fitness for a particular use, title, noninfringement, or error-free or uninterrupted use of the Services and (b) any representations about content or information accessible through the Services.
12. Limitation of Liability.
12.1 Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 12.3, neither party will have any Liability arising out of or relating to the Agreement for any (a) indirect, consequential, special, incidental, or punitive damages or (b) lost revenues, profits, savings, or goodwill.
12.2 Limitation on Amount of Liability. Each party’s total aggregate Liability for dam-ages arising out of or relating to the Agreement is limited to CHF 10.000,00, except Kaleidosim’s total aggregate Liability for damages arising out of or related to Services or Software provided free of charge is limited to CHF 500.
12.3 Unlimited Liabilities. Nothing in the Agreement excludes or limits either party’s Liability for: (a) its obligations under Section 13 (Indemnification), (b) its infringe-ment of the other party’s Intellectual Property Rights, (c) its payment obligations un-der the Agreement, or (d) matters for which liability cannot be excluded or limited under applicable law.
13.1 Indemnification Obligations. Customer will defend Kaleidosim and its Affiliates and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (a) any Project or Customer Data, or (b) Customer’s or an End User’s use of the Services in breach of the AUP or Section 3.2.
13.2 Conditions. Section 13.1 is conditioned on the following:
(a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 13.2(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 13.1 will be reduced in proportion to the prejudice.
(b) Any indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemni-fied party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
(a) If Kaleidosim reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then Kaleidosim may, at its sole option and expense (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.
(b) If Kaleidosim does not believe the remedies in Section 13.5(a) are commercially reason-able, then Kaleidosim may Suspend or terminate Customer’s use of the impacted Services.
13.6 Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 13 states the parties’ sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 13 (Indemnification).
14.1 Notices. Under the Agreement, notices to Customer must be sent to the provided Cus-tomer Email Address and notices to Kaleidosim must be sent to [email protected]. No-tice will be treated as received when the email is sent. Customer is responsible for keeping its Customer Email Address current throughout the Term.
14.2 Emails. The parties may use emails to satisfy written approval and consent require-ments under the Agreement.
14.3 Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
14.5 Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
14.6 Subcontracting. Kaleidosim may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.
14.7 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
14.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
14.9 Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
14.10 No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.
14.11 Governing Law. This Agreement and all claims arising out of, or in connection with, this Agreement or Customer’s or End User’s use of the Service (including all claims arising out of contract, tort, or unjust enrichment) are in all respects governed, construed, and en-forced according to the substantive laws of Switzerland. The U.N. Convention on the Inter-national Sale of Goods of 11 April 1980 will not apply.
14.12 Jurisdiction. Any dispute, controversy, or claim arising out of, or in relation to this Agreement or Customer’s or End User’s use of the Service, including regarding the validity, invalidity, breach, or termination of this Agreement, will exclusively be resolved by the competent courts in Zurich, Canton of Zurich, Switzerland.
14.13 Amendments. Except as stated in Section 1.4(c), any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.
14.14 Survival. The following Sections will survive expiration or termination of this Agreement: Section 2 (Payment Terms), Section 5 (Intellectual Property Rights; Protection of Customer Data; Feedback), Section 7 (Confidential Information), Section 8.6 (Effect of Termination), Section 11 (Disclaimer), Section 12 (Limitation of Liability), Section 13 (In-demnification), and Section 14 (Miscellaneous).
14.15 Entire Agreement. This Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement.
14.17 Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.
Capitalized terms used in this Agreement, have the following meanings:
“Account” means Customer’s Kaleidosim Cloud Platform account.
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is un-der common Control with a party. For the purpose of the foregoing, “Control” means con-trol of greater than 50 percent of the voting rights or equity interests of a party.
“Agreement” means these Terms of Service.
“AUP” means the then-current Kaleidosim Cloud Platform Acceptable Use Policy. As of the Effective Date, the AUP is accessible at https://kaleidosim.com/terms-conditions/.
“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
“Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normal-ly under the circumstances be considered confidential information. It does not include in-formation that is independently developed by the recipient, is rightfully given to the recipi-ent by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer’s Confidential Information.
“CPU Hour” means the amount of time during which a central processing unit (CPU) of a server is utilized to perform a specific task or set of tasks on the Kaleidosim Cloud Plat-form.
“Customer Data” means data provided to Kaleidosim by Customer or End Users through the Services under the Account, such as simulation data.
“Customer Email Address” means the email address registered by the Customer on the Kaleidosim Cloud Platform.
“Documentation” means Kaleidosim’s then-current documentation of the Services (as may be updated from time to time) in the form generally made available on the documentation subpage(s) of the Webpage. As of the Effective Date, the documentation subpage is acces-sible at https://kaleidosim.com/wiki/ and at https://api.kaleidosim.com.
“End Users” means the individuals who are permitted by Customer to use the Services. For clarity, End Users may include employees of Customer Affiliates and other authorized third parties.
“Export Control Laws” means all applicable export and re-export control laws and regula-tions worldwide.
“Fees” means the applicable then-current fees for the Services. The then-current Fees for the Services are stated on the Pricing Page.
“High Risk Activities” means activities where the use or failure of the Services would rea-sonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support sys-tems, or weaponry).
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.
“including” means including but not limited to.
“Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
“Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
“Kaleidosim Account” means (i) a Kaleidosim for OpenFOAM Account (to be registered here: https://app.kaleidosim.com/register) or (ii) a Kaleidosim for COMSOL Account (to be registered here: https://comsol.app.kaleidosim/register) or (iii) any other account or registration option provided by Kaleidosim and required to use the Services.
“Kaleidosim Admin Interface” means the online console(s) or dashboard provided by Ka-leidosim to Customer for administering the Services.
“Kaleidosim Cloud Partner” means a company authorized by Kaleidosim to market and resell the Services integrated into such company’s software.
“Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.
“Liability” means any liability, whether under contract, tort (including negligence), or oth-erwise, regardless of whether foreseeable or contemplated by the parties.
“Pricing Page” means the pricing subpage of the Webpage. As of the Effective Date, the pricing subpage of the Webpage is accessible at https://kaleidosim.com/pricing/.
“Project” means a collection of Kaleidosim Cloud Platform resources configured by Customer via the Services.
“Services” means Kaleidosim’s then-current services described on the products subpage of the Webpage, including the Kaleidosim Cloud Platform. As of the Effective Date, the prod-ucts subpage is accessible at https://kaleidosim.com/products/.
“Suspend” or “Suspension” means disabling or limiting access to or use of the Services or components of the Services.
“Taxes” means all government-imposed taxes, except for taxes based on Kaleidosim’s net income, net worth, asset value, property value, or employment.
“Term” has the meaning stated in Section 8.1 of this Agreement.
“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliat-ed third party before a court or government tribunal (including any appellate proceeding).
“Webpage” means https://kaleidosim.com/ and its subpages.