End User License Agreement
This End User License Agreement (the “Agreement”), is between KAHI INC. (the “Licensor”) and Customer or User, as applicable (the “Licensee”, “you”, “your”). This Agreement describes the terms under which the Licensee may use the Licensed Material (as defined below). By Registering for an Account and downloading, installing or using the Application and any software related to the Kahi Hardware necessary for the provision of the Services, the Licensee agrees to comply with and be bound by all terms of this Agreement.
Capital terms that are not defined here have the same meaning as set out in our Terms and Conditions.
For good and valuable consideration, the parties agree as follows:
- Definitions
- “Licensed Material” means the Software, Application, and any explanatory or proprietary documentation, if any, provided with the Kahi Application or Kahi Hardware to the Licensee.
- “License Term” shall have the meaning set forth in Section 3.1.
- “Device” shall mean any piece of equipment, vehicle, or other business asset, device, computer, server, network, workstation, or virtual machine that the Software is installed on and/or downloaded to, and/or that the Licensor has access to through the installation of the Software.
- “Personal Data” shall have the meaning set forth in the Terms and Conditions;
- “Kahi Software” means the proprietary Kahi Application and any software related to and provided with the Kahi Hardware licensed to the Licensee, and any modified, updated or enhanced versions of such software. (“Software”);
- “Kahi Platform” shall have the meaning set forth in the Terms and Conditions;
- “Services” means certain services provided by Licensor to Licensee pursuant to the Terms and Conditions.
- Grant of License
- License Grant. Subject to the terms of this Agreement, and during the License Term, the Licensor grants to the Licensee, a limited, revocable, non-exclusive, and non-assignable, without the right to sublicense, license to install, access, and run the Kahi Software on/in their device. The Licensed Material may only be used by Licensee for business activities for which the Licensee has purchased a then-current license by subscribing to a Subscription Plan. The terms of this Agreement will govern any content, materials, or services accessible from or purchased within the License, as well as upgrades provided by Licensor that replace or supplement the original License, unless such upgrade is provided under a separate end-user license agreement.
- License Restrictions. The Licensee will not (and will not allow any third party to) with respect to the Licensed Material: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms by any means whatsoever; (ii) remove any product identification, copyright or other notices, (iii) sell, rent, lend, transfer, distribute, license or grant any rights in the Licensed Material in any form to any person without the written consent of the Licensor; (iv) modify, incorporate into or with other software; (v) create a derivative work of any part of the Licensed Material; or (vi) tamper with, otherwise modify, or take any action to circumvent any such alternative licensing protection mechanism.
- Ownership of Licensed Material. As between the parties, at all times the Licensor retains title to, and ownership of all copyright, intellectual property rights and distribution rights with respect to the Licensed Material, and all copies, portions, derivatives thereof or modifications thereto. Intellectual property rights include the look and feel of the Software. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Software. The Licensor reserves all rights not expressly granted hereunder.
- Transfers. The rights and obligations of this Agreement are granted to the Licensee and any authorized User granted access to the Services as contemplated by the Terms and Conditions. Except for those authorized Users, the Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Licensed Material for use by one or more third parties.
- Failure to Comply. Failure to comply with any of the terms of this Section 2 shall be considered a material breach of this Agreement.
- License Grant. Subject to the terms of this Agreement, and during the License Term, the Licensor grants to the Licensee, a limited, revocable, non-exclusive, and non-assignable, without the right to sublicense, license to install, access, and run the Kahi Software on/in their device. The Licensed Material may only be used by Licensee for business activities for which the Licensee has purchased a then-current license by subscribing to a Subscription Plan. The terms of this Agreement will govern any content, materials, or services accessible from or purchased within the License, as well as upgrades provided by Licensor that replace or supplement the original License, unless such upgrade is provided under a separate end-user license agreement.
- Software Installation & Usage Data
- Software Installation. If necessary, Licensee agrees to provide the Licensor’s authorized employees and contractors with access to Licensee’s business facilities and certain Devices infrastructure in order to install the Kahi Hardware and relevant Software and provide the Services to the Licensee through the operation of the Software.
- Usage Data. Licensee acknowledges and agrees that Licensor may collect and use technical or statistical data and related information, including but not limited to technical information about your device, system and application software, and peripherals (“Usage Data”), that is collected periodically to facilitate the provision of software updates, product support, and other services to you related to the Application and Software. Usage Data may contain Personal Data. Licensor may use such Usage Data as long as it is in an aggregate form to improve its products, services, or technology. All collection of Usage Data by Licensor is governed by the Privacy Policy which can be found here.
- Failure to Comply. Failure to comply with any of the terms of this Section 3 shall be considered a material breach of this Agreement.
- Software Installation. If necessary, Licensee agrees to provide the Licensor’s authorized employees and contractors with access to Licensee’s business facilities and certain Devices infrastructure in order to install the Kahi Hardware and relevant Software and provide the Services to the Licensee through the operation of the Software.
- Term and Termination of License
- Term. This Agreement will be effective upon the effective date of the Terms and Conditions and will continue until the termination or expiration of such agreement (the “License Term”).
- Termination. Notwithstanding Section 4.1, the Licensor may terminate this Agreement: (i) upon written notice if the Licensee fails to cure any material breach of this Agreement within thirty (30) days of receiving notice of such breach from the Licensor; provided however, a breach of Sections 2 and 3 will be deemed incapable of cure, and this Agreement will terminate immediately; or (ii) upon receipt of a written end-of-life notice within one hundred and eighty (180) days of receiving such notice by the Licensor.
- Effect of Termination. Upon termination, the Licensee will immediately cease all use of the Licensed Material and will, at the option of the Licensor, return or destroy all copies of the Licensed Material and all portions thereof (whether or not modified or incorporated with or into other software) and so certify to the Licensor in writing by an officer of Licensee. Unless otherwise provided in this Agreement, termination is not an exclusive remedy and all other remedies will be available whether or not the Agreement is terminated. Sections 1, 2.2, 2.3, 2.4, 3.2, 3.3, 4.3, 6, 7, and 8 will survive termination of this Agreement.
- Term. This Agreement will be effective upon the effective date of the Terms and Conditions and will continue until the termination or expiration of such agreement (the “License Term”).
- External Services, Maintenance, User Support
- External Services. The Application may allow access to Licensor’s and/or third-party services and websites (“External Services”). Licensee acknowledges and agrees to the use of External Services at Licensee’s sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Application or External Service, including but not limited to financial, medical, health, and location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. Licensee will not use the External Services in any manner that is inconsistent with the terms of this Agreement or that infringes the intellectual property rights of Licensor or any third party. Licensee agrees not to use the External Services to harass, abuse, stalk, threaten, defame, or for any other unlawful activity, any person or entity, and that Licensor is not responsible for any such unlawful use. External Services may not be available in all languages or in your place of residence and may not be appropriate or available for use in any particular location. To the extent that Licensee chooses to use such External Services, Licensee is solely responsible for complying with any applicable laws. Licensor reserves the right to change, suspend, remove, disable, or impose access restrictions or limits on any External Services at any time without notice or liability to Licensee.
- Maintenance and User Support. Licensor does not provide maintenance, assistance and support under this Agreement. Any maintenance will be delivered under the Terms and Conditions.
- External Services. The Application may allow access to Licensor’s and/or third-party services and websites (“External Services”). Licensee acknowledges and agrees to the use of External Services at Licensee’s sole risk. Licensor is not responsible for examining or evaluating the content or accuracy of any third-party External Services, and shall not be liable for any such third-party External Services. Data displayed by any Application or External Service, including but not limited to financial, medical, health, and location information, is for general informational purposes only and is not guaranteed by Licensor or its agents. Licensee will not use the External Services in any manner that is inconsistent with the terms of this Agreement or that infringes the intellectual property rights of Licensor or any third party. Licensee agrees not to use the External Services to harass, abuse, stalk, threaten, defame, or for any other unlawful activity, any person or entity, and that Licensor is not responsible for any such unlawful use. External Services may not be available in all languages or in your place of residence and may not be appropriate or available for use in any particular location. To the extent that Licensee chooses to use such External Services, Licensee is solely responsible for complying with any applicable laws. Licensor reserves the right to change, suspend, remove, disable, or impose access restrictions or limits on any External Services at any time without notice or liability to Licensee.
- Limited Warranty and Disclaimer
- Warranty. The Licensor warrants to the Licensee to the best of its knowledge that the Software and Application as delivered to Licensee or downloaded from Google Play or the Apple App Store will be the most recent officially released version of the Software and Application, and that the Licensor owns or has licensed the necessary rights, including rights to the relevant intellectual property rights, to perform its obligations under this Agreement, and that no notice has been given to the Licensor alleging that the Licensed Material infringes any intellectual property rights of third parties, nor violates any other agreement or applicable legislation.
- DISCLAIMER. EXCEPT FOR THE FOREGOING WARRANTY, THE LICENSED MATERIAL IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, THE LICENSOR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SOFTWARE, OR THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
- Warranty. The Licensor warrants to the Licensee to the best of its knowledge that the Software and Application as delivered to Licensee or downloaded from Google Play or the Apple App Store will be the most recent officially released version of the Software and Application, and that the Licensor owns or has licensed the necessary rights, including rights to the relevant intellectual property rights, to perform its obligations under this Agreement, and that no notice has been given to the Licensor alleging that the Licensed Material infringes any intellectual property rights of third parties, nor violates any other agreement or applicable legislation.
- LIMITATION OF LIABILITY
- TO THE EXTENT ALLOWED BY LAW, IN NO OTHER EVENT WILL THE LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY DOWNTIME, LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT ALLOWED BY LAW, THE LICENSOR’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUM OF ONE HUNDRED CANADIAN DOLLARS.
- TO THE EXTENT ALLOWED BY LAW, IN NO OTHER EVENT WILL THE LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY DOWNTIME, LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF THE LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT ALLOWED BY LAW, THE LICENSOR’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUM OF ONE HUNDRED CANADIAN DOLLARS.
- Miscellaneous
- This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
- This Agreement can only be modified in writing signed by both the Licensor and the Licensee.
- Failure by the Licensor to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
- This Agreement does not create or imply any relationship in agency or partnership between the Licensor and the Licensee.
- Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
- If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
- This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Licensor’s successors and assigns.
- All notices to the Licensor under this Agreement are to be provided at the following address:
KAHI INC.
2-334 First Avenue
Ottawa, Ontario
K1S 2G9 - Neither party will be liable for delays or failure to perform its obligations under this Agreement, which delay or failure was caused by circumstances or events beyond the control of either party, including without limitation such as epidemics, plagues, pandemics, global outbreaks, public health emergencies or other state of emergency declared by the Government of Canada or any province, State, or Nation in which Kahi provides its Services, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, security breaches, strikes or other labor problems (other than those involving Kahi employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Kahi's possession or reasonable control, and denial of service attacks, or any other cause beyond the reasonable control of that party. If such an event occurs, the party whose performance is hindered will give notice to the other party providing the nature of the delay and an estimate of time that delay will continue, and the delayed party will resume performance of its obligations as soon as possible after the end of the event.
- The Parties to this Agreement submit to the jurisdiction of the courts of the Province of Ontario for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the Province of Ontario and the federal laws of Canada applicable therein.
- In the event of Licensee’s breach of Sections 2 and/or 3, the Licensee agrees that money or damages would not be an adequate remedy, and therefore, in addition to any other legal or equitable remedies, and without waiving the right to arbitration, the Licensor will be entitled to seek an injunction or other equitable relief in any court of competent jurisdiction enjoining and restraining the Licensee from continuing such breach and the payment by the Licensee of all expenses associated with litigation, including reasonable legal fees.
- This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
Last Updated: 2020-04-02