Terms and Conditions

Please note that these Terms and Conditions were updated on 2020-04-02, and that the updated terms will apply to the Services upon any renewal, upgrade, or additional service purchase made after 2020-04-02. 

1. Definitions. 

“Account” means the account created through the Kahi Website and used by the Customer (“Customer Account”) as part of and to access the Services provided by Kahi. 

"Affiliate" means any entity which directly or indirectly controls, i.e. having direct or indirect ownership or control of more than 50% of the voting interests of the subject entity, is controlled by, or is under common control with the subject entity.  

“Applicable Law” means all laws, statutes, common law, regulations, ordinances, codes, rules, guidelines, orders, permits, tariffs and approvals, including those relating to the environment or health and safety, of any governmental or regulatory authority that apply to the parties. 

“Customer” means the individual who Registers for an Account, subscribes to use Kahi’s Services, or uses the Services. For the purposes of these Terms and Conditions, Customer will be the person who is authorized to add corresponding Users in connection with the Services.  

“Customer Data” means all electronic or geographical coordinate data (i) generated by the Services in the form of output data (i.e. real-time geolocation of relevant assets and equipment) received by the customer (but does not mean output formats, layouts, or features that are intrinsic to the Services); and/or (ii) geographical coordinate data necessary for the provision of the Services. Customer Data collected will not comprise of sensitive information including medical information, financial information, and information about minors. 

“EULA” means the End-User License Agreement, available at https://asesets.kahi.io/end-user-license agreement.pdf, which governs the use of the Kahi Application and related software included with the Kahi Hardware required to provide the Services by Customer and any Users; 

“Kahi Application” means the proprietary application that will be downloaded and installed on Customer assets or devices for the purposes assisting Customer in setting up the Services on their equipment or asset, and for providing Customer the Services;. 

“Kahi Hardware” means the proprietary physical hardware purchased by Customer in connection with the provision of the Services which is installed in Customer’s facilities and in their equipment, vehicles, or other business assets to use the Services. 

“Kahi Platform” means the proprietary global asset tracking platform provided by the Kahi Hardware, Kahi Application, Kahi Technology, and Kahi Website. 

“Kahi Technology” means the proprietary technology and intellectual property used in providing the products and services offered by Kahi, including computer software, programs, connectors, websites, networks, and equipment. Kahi Technology does not include third-party applications or other software programs and technology provided or made available to Customer by third parties. 

“Kahi Website” (“Website”) means the proprietary website through which Customers or Users will register for an account, Subscription Plan, and Services; 

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs. 

“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. For greater certainty, Personal Data does not include information that is anonymized or aggregated. 

“Register” means the point at which the Customer creates an Account through the Kahi Website. “Services” shall have the meaning ascribed to it under Section 2.1. 

“Subscription Plan” means the payment plan under which Kahi proves Customer the Services, which can be found here https://kahi.io/plans. 

“Subscription Term” means the period set out under the Subscription Plan. 

“Support Services" means the support, maintenance and training services provided or to be provided by the Kahi, or a third party service provider engaged by Kahi, to the Customer. 

“Term” means the period from the effective date of the first Subscription Term for the first Services purchased, to the date of termination or expiration of the final Subscription Term. 

"User" means any person authorized by Customer to access the Customer Account. 

“Kahi” means Kahi Inc., its employees, contractors, agents, Affiliates, and any other individual authorized by Kahi dealing in the matters under these Terms and Conditions.

“Website” means the website owned and operated by Kahi at https://kahi.io and https://dashboard.kahi.io 

2. Services.  

2.1 Description of Services. Kahi provides access to a cloud-based secure global asset tracking platform that allows businesses to track their physical assets (ex. Equipment or vehicles) via our website and downloadable Application, how those assets are used, where they are deployed, and for precisely how long they were in use. This enables businesses and equipment manufacturers to easily integrate the asset intelligence we provide into other applications and solutions, and drive automation of asset-based business processes (“Services”).  

After Customer Registers for an Account through the Website, if they do not already have equipment with the Kahi Hardware installed, they will be provided with the Kahi Hardware and installation support to install the hardware onto their equipment, vehicle, or other business asset, and in their business facilities. Customer will then download the Kahi Application from the Google Play Store or Apple App Store, which will assist them in setting up the Kahi Hardware and connecting it to their Account.

Kahi grants the Customer a non-exclusive, non-transferable, revocable, worldwide right to access and use the Kahi Website, Kahi Application, and Services during the Term, solely for Customer’s business purposes. Any new features or tools which are added to the current Services shall also be subject to these Terms and Conditions. Kahi reserves all other rights. Customer shall not use any Services that are not set forth in the Subscription Plan they have Registered for through their Customer Account and accepted by Kahi, except as otherwise provided in these Terms and Conditions. 

2.2 Trial. Kahi may, in its sole discretion, offer a Trial period from time-to-time for the Subscription Plan. If a  Trial is made available to Customer and Customer wishes to participate in a trial, Kahi agrees to make available the Services being offered during the Trial to Customer for the Trial Term and grants Customer the right to test, access, and use the Services and to report to Kahi the usefulness and functionality of the services (the “Trial”). On or 

before the expiry of the Trial Term, Customer shall agree to either (i) close their account with no further obligations (other than those surviving termination as described herein) or (ii) sign up for the Services and continue all subscriptions granted in accordance with these Terms and Conditions (for the purposes of this Agreement, such Registration following the Trial term shall form part of the Term). This Section 2.2 only applies if Customer participates in a Trial period or offer. For greater certainty, if Customer does not participate in a Trial period or offer, this Section 2.2 is void and of no legal effect.  

2.3 Provision of Services. Kahi shall make the Services available to Customer and its designated Users during the Term. Customer may subscribe for Services for the number of Users affiliated with Customer Account through Customer Account by selecting a Subscription Plan. Customer agrees that its purchase of a Subscription Plan is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Kahi with respect to future functionality or features. Customer acknowledges and agrees that Customer has not relied on any future availability of any service offerings, technology, or enhanced or updated features or functionality, and that the Services do not include any audit support. 

2.4 Kahi Hardware, Technology, Application, and Website. Customer may access the Kahi Website through their regular internet service provider and browser and may access the Kahi Application using their mobile device. Kahi Hardware, Technology (including any third-party support software), the Kahi Application, and the Kahi Website is owned by Kahi or applicable third-party licensors and suppliers and is subject to the terms of the EULA, which forms part of these Terms and Conditions, and can be found here https://asesets.kahi.io/terms-and conditions.pdf. 

2.5 Beta Services. From time to time, Kahi may offer to certain Customers test versions of a new Services, functionality, or feature of an existing Services (“Beta Services”) for evaluation by you and Users. Customer is not charged any additional fee to use Beta Services If you use a Beta Services, you accept and acknowledge that: (a) the Beta Services is a pre-release version that is still under development and may not work as it is intended, or at all; the Beta Services might not be reliable and the results of the Beta Services may not be accurate; and, your use of the Beta Services might present risks of operational failure; (b) the Beta Services is intended for testing and evaluation only, and is provided on an “AS IS”, “AS AVAILABLE” and “WITH ALL FAULTS” basis; (c) Kahi reserves the right to change or terminate the Beta Services at any time without notice to you, and we are not obligated to release a commercial version of the Beta Services; (d) any commercial version of the Beta Services may be substantially different from the Beta Services and may not be compatible with certain software or systems; (e) Kahi is not obligated to provide you with customer support for the Beta Services; and (f) any and all information you obtain regarding the Beta Services is confidential and you may not disclose that information to any other person or entity, or use that information for any purpose other than providing feedback to us. 

3. Account. 
   

3.1 Customer Account. Kahi shall enable a Customer Account for Customer to access the Services. Kahi shall allow Customer to create usernames and passwords for Customer Account. Customer must Register for a Customer Account by providing a first name, last name, business phone number, and valid business email address, and any other information required by Kahi. Kahi may, in its sole and absolute discretion, reject an application for an Account for any reason, and Kahi reserves the right to refuse service to anyone for any reason at any time. Customer may authorise Users to access Customer’s Account. Customer is solely responsible for maintaining the status of its Users and ensuring that they comply with these Terms & Conditions. 

Customer and its Users shall maintain the confidentiality of all usernames, passwords, access, and account information (“Customer Login”) under their control. Except to the extent caused by Kahi’s breach of this Agreement, including its obligations under Section 8 (Confidentiality), Kahi is not responsible for unauthorized access to any Account.  

Customer shall contact Kahi promptly if (i) the Account information is lost, stolen, or disclosed to an unauthorized person; (ii) Customer reasonably believes that the Account has been compromised, including any unauthorized access, use, or disclosure of account information; or (iii) any other breach of security in relation to Customer Login or Kahi’s Services that may have occurred or is reasonably likely to occur. Kahi will not be liable for any loss, damage, or claims, whether instigated by Customer or otherwise, directly or indirectly resulting from your failure to maintain the security of Customer Login, Customer Account, or User Account(s). Customer is solely responsible and liable for the acts, omissions and defaults arising from its Users use of User Accounts in the performance of obligations under these Terms and Conditions as if they were Customer’s own acts, omissions, or defaults.  

3.2 Customer Account Requirements. To Register for a Customer Account and receive a Customer Login, you must 

(i) have attained the age of majority in your jurisdiction where you reside, and 

(ii) confirm that you are using the Services for business purposes only. 

Persons under the age of majority in their jurisdiction or are less than 18 years of age (“Minor”) may not create and use User Account(s). 

3.3 Communication. Kahi may use the Personal Data you provide to Kahi at the time of Registration or as updated by you from time to time to communicate with you on matters related to the Kahi Application and Services.  You acknowledge that you are providing Kahi Inc. with your express consent and the authority, and you warrant that you have obtained the necessary consent and the authority, to permit us to collect, use, retain, disclose and delete your personal information as set out in our for other purposes as set out in Kahi’s Privacy Policy.

4. Use of the Services.

4.1 Kahi Responsibilities. Kahi shall: (i) maintain the integrity of the Services; (ii) provide certain Support Services to Customer and Users, at no additional charge; and (iii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for (each of the following being an “Exception”): (a) planned downtime (of which Kahi shall give at least 8 hours’ notice via the Services and which Kahi shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. EST Friday to 3:00 a.m. EST Monday); or (b) any unavailability caused by circumstances beyond Kahi's reasonable control, including without limitation, 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. 

4.2 Customer Responsibilities. Customer is responsible for all activities that occur in Customer Accounts and for Users' compliance with these Terms and Conditions. Customer shall: (i) use the Services in compliance with the Use Guidelines described in Section 4.3; (ii) use reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Kahi promptly of any such unauthorized access or use, including any such improper or unauthorized use by Users; (iii) accept and abide by the terms of the EULA and/or ensure that Users affiliated with Customer Account accept and abide by the terms of the EULA (where applicable); and (iv) comply with all Applicable Laws in using the Services. 

4.3 Use Guidelines. Customer shall use the Services, and ensure that Users who have access to the Customer Accounts use the Services, solely for his/her business/commercial purposes during the Term as contemplated by these Terms and Conditions and shall not, and ensure Users with access to the Customer Account shall not (where applicable): (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than to Users or as otherwise contemplated by these Terms and Conditions; (ii) send spam or otherwise duplicative or unsolicited messages in violation of Applicable Laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party intellectual property or privacy rights; (iv) send or store Malicious Code (whether intentional or inadvertent); (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (vi) attempt to gain unauthorized access to the Services or its related systems or networks. You are responsible for all activity and content uploaded by you or your Users through the Kahi Application and Services, including without limitation, photographs, images, videos, graphics, written content, code, information, and other data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited in connection with your Account. 

5. Fees & Payment.

5.1 User Fees. Customer shall pay all fees specified under its Subscription Plan, accessed through Customer Account, using credit card payment through a third-party service payment system. Except as otherwise specified in these Terms and Conditions, under the Subscription Plan: (i) fees are based on Services purchased and not actual usage, (ii) except as set out under Section 2.2 (Trial), payment obligations are non-cancelable, and (iii) except as set out under Section 2.2 (Trial), fees paid are non-refundable. 

5.2 Subscription Plans. Customer’s Subscription Plan for the Services and status thereof is specified in Customer Account. Subject to Section 2.2, Customer may not reduce Customer’s commitment under the Subscription Plan specified in Customer Account during the Subscription Term. If Customer wishes to reduce the number of User Accounts, then Customer must notify Kahi before the start of the next Subscription Term for the applicable Services; any changes will be effective at the start of that next Subscription Term. 

5.3 Invoicing & Payment. Fees for the Services must be paid in advance and billed monthly in accordance with a Subscription Plan, available here and payable through Customer Account.  You are responsible for maintaining complete and accurate billing and contact information through your Customer Account. 

5.4 Suspension or Termination for Non-Payment. If the monthly payment is not provided by Customer, either through the automated payment system or otherwise, Kahi reserves the right to suspend or revoke access to the Services, without liability to Kahi, until any outstanding amounts are paid in full. Your Account(s) will be reactivated upon payment of any outstanding amounts including the payment for the next billing cycle. If an outstanding balance remains unpaid on your Account for more than sixty (60) days, Kahi reserves the right to terminate your Account. 

5.5 Effect of Suspension. If Kahi suspends Customer’s ability to access the Services, (i) Customer remains responsible for all fees and charges for suspended Services and for other Services to which Customer continues to have access, if any; and (ii) Customer will not be entitled to any compensation or credits for any period of suspension, unless suspension was due to Kahi’s error or omission. 

5.6 Taxes. Unless otherwise stated, Kahi's fees do not include any direct or indirect local, provincial, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Kahi's net income or property. If Kahi has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer.

5.7 Annual Increases. Following the first Subscription Term, Services fees may be subject to annual increases at the level of then-current pricing under the Subscription Plans, which will become effective beginning upon the first day of each subsequent Subscription Term. Kahi shall notify Customer of any increase at least 30 days prior to Customer’s subsequent Subscription Term. Such notice may be in the form of notice commonly used by Kahi to communicate with Customer. If Customer objects to the increase, then Customer may elect to not renew its Subscription Plan. Customer acknowledges that the following do not constitute fee increases: (i) additional fees for any upgrade or an additional Services that Customer orders, and (ii) expiration of any discount or incentive programs to which Customer was previously entitled. 

5.8 Payment Disputes. Customer must assert any payment dispute in writing to Kahi’s accounting department at finance@kahi.io within 15 days after the due date of the invoice giving rise to the dispute. Kahi shall not exercise its suspension or termination rights or apply interest on late payments if Customer disputes the applicable charges reasonably and in good faith and provides reasonable cooperation to resolve the dispute. 

6. Proprietary Rights. 

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Kahi reserves all right, title, and interest, including all intellectual property rights, in and to the Services and all technologies related thereto, including any and all algorithms or processes developed by Kahi and all derivatives, modifications, or improvements of or to any of the foregoing made by or for Kahi, whether or not created or developed in connection with the Services. No rights are granted to Customers hereunder other than as expressly set forth herein. 

6.2 Restrictions. Customer shall not (i) modify, copy or create derivative works based on the Services; (ii) frame or mirror any content forming part of the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; or (iv) access the Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Services. 

6.4 Usage Data. Kahi may collect certain data and information regarding Customer and/or Users use of the Services, including, but not limited to, data involving functions within the Services most used by Customers or other items (“Usage Data”). Kahi may use and exploit Usage Data for any purpose in connection with operating, improving and supporting the Services and any machine learning technology that underlies the Services (“Usage Data Purpose”). Notwithstanding any term in these Terms and Conditions to the contrary, Customer hereby consents to the use of such Usage Data for the Usage Data Purpose, and Customer represents and warrants it has obtained the necessary consent and legal right from Users (if applicable) to do the same, and Customer irrevocably assigns all rights, title and ownership of the Usage Data to Kahi, and Customer hereby waives any applicable non assignable rights to such Usage Data to the extent Customer is legally permitted to do so, and Customer represents and warrants it has obtained the necessary consent and legal right from Users (if applicable) to do the same. Kahi represents and warrants that it shall not use the Usage Data for any other purpose other than the Usage Data Purpose.  

6.5 Collected Data. Kahi Inc., as part of our Services, will use, process, and aggregate the Customer Data collected from our Customers and their use of the equipment in which the Kahi Hardware is installed. We aggregate that Data, scrubbing all Personal Data, and provide reports to Customer as part of the Services. This Data is only related to the Customer’s own equipment or other physical assets. At no time will any data that is collected from a Customer be sold to any third-party or other entity, other than the Customer from whom the data was collected. 

6.6 Suggestions. Kahi shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Services.

7. Privacy Rights.  

7.1 Privacy Obligations. Notwithstanding any provisions, representations and warranties to the contrary, Kahi and Customer acknowledge that there is a possibility that the Collected Data and Usage Data may contain Personal Data, the use of which data is subject to various privacy laws, including all provincial, state, federal and international laws and regulations and provincial, state, federal and national government agency orders and decrees to which Customer(s) may be subject (“Privacy Laws”), as well as certain restrictions imposed on the Personal Data by the data subjects or other third party data providers. Kahi and Customer agree to strictly abide by all such restrictions pertaining to the Personal Data, as they are promulgated and applied, currently and in the future. Furthermore, Kahi shall in good faith execute any and all agreements that Customer is required to have Kahi execute in order that Customer may comply with any Privacy Laws. If Kahi or Customer’s use (whether directly or indirectly) of the Personal Data is contrary to any Privacy Law, or contrary to any of the restrictions set forth in these Terms and Conditions, the non-violating party shall have the right to: (a) terminate this Agreement for cause if such breach has not been cured within five (5) days of receipt by the violating party of written notice from the non violating party, and (b) pursue any other legal and equitable remedies. For greater certainty, Kahi’s Privacy Policy governs Kahi’s collection, use, disclosure, retention and disposal of Personal Data, and forms part of these Terms and Conditions. 

8. Confidentiality. 

8.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential and proprietary information of Customer or User disclosed to Kahi, whether orally or in writing, or whether disclosed purposefully or inadvertently, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the Customer Data, Collected Data and Usage Data. Confidential Information shall not include any information that:  (i) is or becomes generally known to the public without breach of any obligation owed to Customer or User; (ii) was known to Kahi prior to disclosure by Customer or User without breach of any obligation owed to Customer or User; or (iii) is received from a third party without breach of any obligation owed to Customer or User. 

8.2 Confidentiality. Kahi shall implement and maintain commercially reasonable and appropriate technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access to or publication of Customer Data, Collected Data and Usage Data, Confidential Information, or Personal Data. Kahi shall implement processes and maintain procedures designed to comply with Applicable Laws. These Terms and Conditions are Customer’s instructions for storing Customer Data, Collected Data and Usage Data, and Kahi shall not process Customer Data, Collected Data and Usage Data for any other purpose. Kahi may use subcontractors to facilitate its obligations under these Terms and Conditions. Kahi shall use commercially reasonable measures to ensure that such subcontractors implement and comply with reasonable security measures in handling any Customer Data, Collected Data and Usage Data, Personal Data, or Confidential Information. Kahi shall not disclose or use any Confidential Information for any purpose outside the scope of these Terms and Conditions, except with Customer's prior written permission, subject to Section 8.3. 

8.3 Compelled Disclosure. If Kahi is compelled by law to disclose Confidential Information of Customer or User, including encrypted Customer Data, Collected Data and Usage Data, it shall provide Customer or User, as applicable, with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Customer or User’s cost, if Customer or User wishes to contest the disclosure. 

9. Warranties & Disclaimers.

9.1 Mutual Warranties. Each Party represents and warrants to the other Party that (i) it has the authority to enter into this Agreement and perform its obligations hereunder; (ii) the Agreement does not conflict with any other agreement entered into by it; and (iii) it does not conduct business for any unlawful purpose. 

9.2 Customer Warranties. Customer represents and warrants that for any Customer Data, Collected Data, Usage Data or Personal Data controlled by it, any Personal Data controlled by any Sser affiliated with Customer Account, or any other Customer Data, Collected Data and Usage Data or Personal Data provided or transmitted by Customer to Kahi, whether advertent or otherwise, Customer or User, as applicable, has obtained the necessary consent or legal right to provide or transmit such data.  

9.3 Kahi Warranties. Kahi represents and warrants that (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the functionality of the Services will not be materially decreased during the Term; (ii) the Services will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User-uploaded attachments or otherwise originating from Users); (iv) it owns or otherwise has sufficient rights in the Services to grant to Customer the rights to use the Services granted herein; and (v) the Services does not infringe any intellectual property rights of any third party. 

9.4 Disclaimer. NOTWITSHTANDING KAHI’S SECURED SOFTWARE AND APPLICATION, CUSTOMER ACKNOWLEDGES THAT NO APPLICATION OR SOFTWARE STORAGE SOLUTION IS CAPABLE OF PROVIDING COMPLETE PROTECTION AGAINST ALL KNOWN AND UNKNOWN VULNERABILITIES/ZERO-DAY THREATS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY DOCUMENTATION THAT MAY BE PROVIDED AS PART OF THE SERVICES ARE PROVIDED “AS IS,” AND KAHI MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE DOCUMENTATION OR THE SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY KAHI. KAHI DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT THE OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER. 

10. Indemnification.  

10.1 Indemnification by Customer. Subject to these Terms and Conditions, Customer shall defend, indemnify and hold Kahi harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Kahi by a third party alleging that the Customer Data, Collected Data and Usage Data, or Customer's use of the Services: (i) infringes the intellectual property rights of such third party, or (ii) has harmed such third party because Malicious Code was uploaded or inputted by Users, (iii) electronic data or information was uploaded or inputted by Users without such third party’s authorization or permission, or (iv) violates any Applicable Law, or has otherwise harmed a third party; provided, that Kahi (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Kahi of all liability); and (c) provides to Customer, at Customer's cost, all reasonable assistance. 

11. Limitation of Liability.

11.1 Limitation of Liability. IN NO EVENT SHALL KAHI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, OR RELATIONSHIP BETWEEN VENDOR AND CUSTOMER, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE PRICE OF THE SUBSCRIPTION PLAN TO WHICH CUSTOMER REGISTERED AND SUBSCRIBED. 

11.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL KAHI HAVE ANY LIABILITY TO CUSTOMER(S) FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT CUSTOMER OR USER(S) HAS OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

11.3 Limitation of Claims. EXCEPT WITH RESPECT TO CLAIMS RELATING TO THE MISUSE OF CONFIDENTIAL INFORMATION OR PERSONAL DATA, CUSTOMER SHALL NOT BRING ANY CLAIM RELATING TO THE AGREEMENT MORE THAN TWO YEARS AFTER THE EVENTS GIVING RISE TO THE CLAIM OCCURRED. 

11.4 General. THESE EXCLUSIONS AND LIMITATIONS APPLY EVEN IF THE REMEDIES ARE INSUFFICIENT TO COVER ALL OF THE LOSSES OR DAMAGES OF CUSTOMER OR USERS. WITHOUT THESE LIMITATIONS THE FEE FOR THE SERVICES WOULD BE SIGNIFICANTLY HIGHER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY AND THE PARTIES MAY HAVE ADDITIONAL RIGHTS.

12. Term and Termination. 

12.1 Term. The Term of this Agreement begins when Customer purchases the Services through the Kahi Website and ends on the date of termination, cancellation or expiration of the Subscription Term. Customer may cancel the Subscription under Section 12.2 below.  

12.2 Termination for Cause. Kahi may terminate the Agreement or any affected Services by notice to Customers or Users (i) if Customer or User materially breaches their obligations under the Agreement and, if the breach is capable of cure, fails to cure the breach within 30 days of the date of notice of breach; or (ii) upon Kahi ceasing to operate in the ordinary course of business, making an assignment for benefit of creditors, or becoming the subject of any bankruptcy, liquidation, dissolution, or similar proceeding that is not resolved within 60 days of filing. Material breach by Customer includes the following: (1) Customer or User is unable to resolve any issue leading to suspension of Customer or User’s Services to Kahi’s reasonable satisfaction within 30 days following notice of suspension, or (2) Customer or User’s use of the Services is in violation of Applicable Law. Customer or User will not be entitled to any refunds of any payments to Kahi, pro rata or otherwise. Customer and User acknowledge and agree that Kahi shall not be liable for costs, fees, damages, lost profits, or the like, as a result of termination or any reason whatsoever under this Section 12.2. 

12.2 Cancellation. Customer may cancel the Account and any affiliated User Accounts and terminate this Agreement upon thirty (30) days’ notice to Kahi. Upon such cancellation, Customer shall pay to Kahi all undisputed amounts due and payable hereunder, if any. Customer will not be entitled to any refunds of any payments to Kahi, pro rata or otherwise. 

12.3 Outstanding Fees. Termination or cancellation shall not relieve Customer of the obligation to pay any fees accrued or payable to Kahi prior to the effective date of termination. 

12.4 Return and Retention of Collected Data and Usage Data. Within sixty (60) days after the effective date of termination, Customer, and Users with Accounts affiliated with Customer’s Account, may download and close their Account(s). After such 60-day period, Kahi shall have no obligation to maintain or provide access to Customer Data, Collected Data and Usage Data and shall thereafter, delete all Collected Data and Usage Data in its systems. 

12.5 Return of Kahi Technology and Hardware. If required by Kahi, upon termination of the Customer Account, Customer must return all Kahi Technology and Kahi Hardware to Kahi within sixty (60) days after the effective date of termination. 

12.6 Surviving Provisions. The following provisions of these Terms and Conditions shall survive any termination or expiration of these Terms and Conditions: Sections 5 through 13. 

13. General Provisions. 

13.1 Relationship of the Parties. These Terms and Conditions do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. 

13.2 Verification of Identity. In the event that you or User requests Support Services, or other Services, from Kahi, which require the verification of your identity and right to any Account, Kahi reserves the right to request documentation from you or User to determine or confirm Account ownership. Such documentation may include, without limitation, a scanned copy of government issued photo identification, the last four digits of the credit card used for payment under the Account, or your phone number on file. 

13.2 No Third-Party Beneficiaries. Except as otherwise expressed herein, there are no third-party beneficiaries under these Terms and Conditions. 

13.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under these Terms and Conditions shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. 

13.5 Severability. If any provision of these Terms and Conditions is held by a court of competent jurisdiction to be contrary to law, the 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 of these Terms and Conditions shall remain in effect. 

13.6 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the Kahi (not to be unreasonably withheld). Notwithstanding the foregoing, Kahi may assign this Agreement in its entirety, without consent of the Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by Customer to assign its rights or obligations under these Terms and Conditions is in breach of this Section shall be void and of no effect. Subject to the foregoing, these Terms and Conditions shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 

13.7 Dispute Resolution. Except for Claims related to the infringement of intellectual property rights, all disputes or controversies as between Customer and Kahi arising out of or relating to these Terms and Conditions, any Kahi Services and its marketing ("Disputes") shall be determined first by mediation. The Parties shall first attempt to resolve any Dispute informally for at least thirty (30) days before initiating mediation. If the Parties cannot resolve the Dispute informally, the Parties may elect to initiate mediation. The mediation shall be facilitated by a mediator of Kahi’s choice and conducted in person in the City of Ottawa, Province of Ontario, Canada. The language of the mediation and/or arbitration shall be English (each Party shall be responsible for obtaining their own translation and legal services). If the Parties cannot resolve the Dispute through mediation, the Parties may commence a claim pursuant to these Terms and Conditions.  

accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to principles of conflicts of laws. The Parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario with respect to any dispute or claim arising out of or in connection with these Terms and Conditions. Customer agrees that each Party may bring claims against the other only in its individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. 

13.9 Equitable Relief. Customer acknowledges that damages may be an inadequate remedy if Customer or the Users violate the obligations under these Terms and Conditions, and Kahi shall have the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security. 

13.10 Notices. Kahi shall communicate announcements of general interest by email or by posting on its Website. Kahi shall provide Customer with legal notices by email provided by Customer. Customer shall immediately notify Kahi if Customer’s email address for notice changes. Except as otherwise specified in these Terms and Conditions, all notices must be in writing to support@kahi.io. 

13.11 Entire Agreement, Amendment and Conflict. This Agreement constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the Parties with respect thereto. Kahi reserves the right to update and change the Terms and Conditions by posting updates and changes to the Website. We strongly encourage you to check the Terms and Conditions from time to time for any updates that may impact you. If you do not accept the updates, you must stop using the Services. Except to the extent expressly specified otherwise, if there is any conflict between these Terms and Conditions and any of the other Agreement documents or policies, then the following order of precedence applies: (i) any addendum between the Parties, (ii) these Terms and Conditions, (iii) other documents referenced in these Terms and Conditions. 

13.12 Supplemental Terms. Supplemental terms may apply to certain Services, such as rules for activities or promotions, and such supplemental terms will be disclosed to you in connection with the applicable Services.  Supplemental terms are in addition to, and shall be deemed a part of, these Terms. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services. 

Last Updated: 2020-04-02