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Koala Terms of Service

Effective January 2, 2023


Table of Contents

1. Order Forms. Access to the Services

Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer's compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Koala grants Customer a nonexclusive, limited, nonsublicensable, nontransferable right and license to internally access and use the Koala product(s) and/or service(s) specified in such Order Form (collectively, the "Service," or "Services") during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Koala's applicable official user documentation for such Services.

2. Customer Responsibilities

Customer shall ensure that (i) its use of the Services and each Customer client, potential lead, or user that interacts with the Services in connection with this Agreement (each, an "End User") only accesses and uses the Services in compliance with Koala's online Terms of Use (as may be updated from time to time) and (ii) Customer has obtained all consents or approvals from or by, and provided all necessary to, all End Users, necessary to access and use the Services and provide Koala with the Customer Data (as defined in below), including, without limitation, valid End User consents and notices. Customer is responsible for all of Customer's activity in connection with the Services, including, but not limited to, uploading data onto the Services and obtaining all necessary consents or approvals from or by, and providing all necessary notices to, all End Users. Customer is solely responsible for any activities or decisions that Customer makes that are based on or relate to any information provided or collected by the Services. Customer assumes all risks arising from such activities and decisions. If required to use the Services, Customer will establish a username and password (or any other means required by Koala) for verifying that only designated employees or agents of Customer have access to any administrative functions of the Services. Customer will be responsible for maintaining the security of Customer's account, passwords (including, but not limited to, administrative and user passwords) and files.

3. Implementation

Upon payment of any applicable fees set forth in each Order Form, Koala agrees to use reasonable commercial efforts to provide standard implementation assistance for the Services only if and to the extent such assistance is set forth on such Order Form ("Implementation Assistance"). If Koala provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Koala otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Koala at its then-current hourly rates for consultation.

4. Support; Service Levels

Subject to Customer's payment of all applicable fees, Koala will provide support, maintenance service, and uptime for each Service in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and (ii) Koala's then-current standard Support and Availability Policy (the current version of which is available at home.getkoala.com/SLA).

5. Services Updates

From time to time, Koala may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge ("Updates"), and such Updates will become part of the Services and subject to this Agreement; provided that Koala shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Koala may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Koala shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.

6. Ownership; Feedback

As between the parties, Koala retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Koala for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the "Services" and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Koala with respect to the Services ("Feedback"). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Koala notwithstanding anything else. Koala acknowledges and agrees that all Feedback is provided "AS IS" and without warranty of any kind. Customer shall, and hereby does, grant to Koala a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Koala's right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.

7. Fees; Payment

Customer shall pay Koala fees for the Services as set forth in each Order Form ("Fees"). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Services (excluding taxes based on Koala's net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Koala shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Koala's then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with Section 12), such renewal shall include the additional fees for such excess users and usage.

The amounts quoted by Company are exclusive of any and all applicable local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, goods & services, sales, use, and withholding taxes ("Taxes"). Customer is solely responsible for paying all applicable Taxes, excluding only taxes based on Company's net income. If Company has the legal obligation to pay or collect applicable Taxes under this Section, the appropriate Taxes shall be invoiced to and paid by Customer in addition to the amounts quoted unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.

Customer shall make all payments to Company free and clear of, and without reduction for, any withholding taxes and Customer shall be solely responsible for any non-United States withholding taxes (e.g., if Customer is located or incorporated outside the United States) and if withholding taxes apply, Customer shall gross up the amount payable to ensure post-withholding remittance to Company at the amounts quoted and invoiced by Company.

8. Restrictions

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Koala product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Service; or (viii) bypass any measures Koala may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer (a) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.

9. 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 Services in the course of using the Services, including data related to End Users. Notwithstanding anything to the contrary, Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Koala, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Koala shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data. Koala is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to Koala's gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer's account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Koala may (i) internally use and modify (but not disclose, other than as necessary to provide the Services) Customer Data for the purposes of (A) providing the Services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Koala's business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Koala's products and services). "Aggregated Anonymous Data" means data submitted to, collected by, or generated by Koala in connection with Customer's use of the Services, but only in aggregate or anonymized form, which can in no way be linked specifically to Customer.

10. CCPA

Except with respect to Account Data and Company Usage Data, the parties acknowledge and agree that Company is a service provider for the purposes of the CCPA (to the extent it applies) and is receiving personal information from Customer in order to provide the Services pursuant to the Agreement, which constitutes a business purpose. Company shall not sell any such personal information. Company shall not retain, use or disclose any personal information provided by Customer pursuant to the Agreement except as necessary for the specific purpose of performing the Services for Customer pursuant to the Agreement, or otherwise as set forth in the Agreement or as permitted by the CCPA. The terms "personal information," "service provider," "sale," and "sell" are as defined in Section 1798.140 of the CCPA. Company certifies that it understands the restrictions of this Section 10. "Company Usage Data" means Service usage data collected and processed by Company in connection with the provision of the Services, including without limitation data used to identify the source and destination of a communication, activity logs, and data used to optimize and maintain performance of the Services, and to investigate and prevent system abuse. "Account Data" means personal information that relates to Company's relationship with Customer, including the names or contact information of individuals authorized by Customer to access Customer's account and billing information of individuals that Customer has associated with its account. Customer Account Data also includes any data Company may need to collect for the purpose of managing its relationship with Customer, identity verification, or as otherwise required by applicable laws and regulations.

11. Third Party Services

Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties ("Third Party Services"), including without limitation through integrations or connectors to such Third Party Services that are provided by Koala. Koala is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof. Koala does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party's terms and conditions.

12. Term; Termination

This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Koala may suspend or limit Customer's access to or use of the Services if (i) Customer's account is more than sixty (60) days past due, or (ii) Customer's use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Koala's ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a) Koala shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Koala shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Koala shall reinstate Customer's use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Koala to Customer, including the data export set out above, and any assistance in exporting the Customer Data, shall be billable at Koala's standard rates then in effect.

13. Indemnification

Each party ("Indemnitor") shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates' employees, contractors, directors, suppliers and representatives (collectively, the "Indemnitee") from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys' fees) ("Losses"), that arise from or relate to any claim (i) in the case of Customer as Indemnitor, relating to or arising out of Customer's actual or alleged noncompliance with Section 2 (Customer Responsibilities), or that the Customer Data or Customer's use of the Services infringes, violates, or misappropriates any right, or (ii) in the case of Koala as Indemnitor, the Services infringes, violates, or misappropriates any third party U.S. intellectual property right. Each Indemnitor's indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor's expense). The foregoing obligations of Koala do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Koala (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Koala, (iv) combined with other products, processes or materials not provided by Koala (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer's use of the Services is not strictly in accordance herewith.

14. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

15. Limitation of Liability

EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER'S BREACH OF SECTION 8, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) (A) THE FEES PAID BY CUSTOMER TO KOALA HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER, (B), IF NO FEES ARE PAID BY CUSTOMER TO KOALA, $500.

16. Miscellaneous

This Agreement represents the entire agreement between Customer and Koala with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Koala with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Wilmington, Delaware. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party's reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party's consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party's business relating to this Agreement, and (ii) Koala may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys' fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party's rights with respect to such breach or any subsequent breaches.