THIS END USER LICENSE AGREEMENT (“EULA”) IS A BINDING LEGAL AGREEMENT BETWEEN YOU (AS EITHER AN INDIVIDUAL OR ON BEHALF OF AN ENTITY) AND KANOA, INC. BY CLICKING ACCEPT OR OTHERWISE INDICATING ACCEPTANCE ELECTRONICALLY, OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THIS EULA AND ALL OF ITS TERMS AND CONDITIONS INCLUDING THE LIMITED WARRANTY, DISCLAIMERS AND LIMITATION OF LIABILITY PROVISIONS. IF THE INDIVIDUAL PERSON ACCEPTING THESE TERMS IS ACTING ON BEHALF OF ANOTHER PERSON OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY HAVE FULL AUTHORITY TO BIND SAID OTHER PERSON OR LEGAL ENTITY, TO THIS EULA AND ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, YOU SHOULD NOT CLICK ACCEPT, DOWNLOAD, INSTALL OR USE THE SOFTWARE, BECAUSE DOING ANY OF THE FOREGOING CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS EULA AND ALL OF ITS TERMS AND CONDITIONS.
You and Kanoa acknowledge and agree as follows:
“Activation Key” means an alphanumeric code that enables You to activate and use the Software.
“Affiliates” means persons or entities that Control, are Controlled by, or are under common Control with a Party.
“Confidential Information” has the meaning set forth in Section 7 below.
“Control” (including the terms “Controlled by” and “under common Control with”) means authority which an entity has over another entity through any of the following, directly or indirectly: (i) ownership of 50% or more of the share capital or other ownership interest in such other entity; (ii) the right to exercise 50% or more of the votes in such other entity; (iii) the contractual right to designate more than half of the members of such other entity’s board of directors or similar executive body; or (iv) by virtue of any power conferred by the Laws, constitutional documents, agreements or arrangements regulating or relating to such undertaking.
“Disclosing Party” has the meaning set forth in Section 7.
“Documentation” means the then-current information regarding the Software that is provided or made available to You by Kanoa either in print or electronic form, and which may include end user manuals, operation instructions, installation guides, release notes and online help files regarding the use of the Software.
“Export Laws” has the meaning set forth in Section 12.
“High Risk Activities” has the meaning set forth in Section 11.
“Kanoa” means Kanoa, Inc., a Washington Corporation, having a principal place of business at 1933 Norma Rd NE Tacoma, WA 98422, USA.
“Inductive Automation” means Inductive Automation, LLC, a California limited liability company, having a principal place of business at 90 Blue Ravine Road, Folsom, California 95630, USA.
“Instance” means a single copy of the Software running on a single physical or virtual machine.
“IP Claim” has the meaning set forth in Section 9.
“Non-Kanoa Application” means a Web-based, mobile, offline or other software application or module functionality that interoperates with the Software, that is provided by You or a third party and/or listed on an online directory, catalog or marketplace of applications or modules that interoperate with the Software.
“Law” or “Laws” means all applicable international, federal, state and local laws, including common laws, ordinances, codes, rules and regulations.
“Party” means either You or Kanoa as a party to the EULA (and together, the “Parties”).
“Receiving Party” has the meaning set forth in Section 7.
“Registered Instance” means an Instance of the Software that has been activated by You using an Activation Key provided by Kanoa. If such Activation Key is subsequently used to activate a different Instance of the Software, then the first Instance of the Software will automatically cease to be a Registered Instance.
“Representatives” has the meaning set forth in Section 7.
“Reseller/OEM Product” means a product into which a system integrator or original equipment manufacturer has integrated the Software.
“Software” means modules supplied by Kanoa that are installed on the Ignition by Inductive Automation® software platform and all versions, enhancements, modifications, improvements, derivatives, updates and new releases thereof.
“Supplemental Terms” means those separate terms and conditions that apply to the Software and Documentation as set forth in a separately signed agreement between You and Kanoa such as a project proposal, master agreement or enterprise agreement.
“Support Services” means maintenance and support services, including updates, upgrades or enhancements to the Software, as described in Kanoa’s then-current maintenance and support program.
“Taxes” has the meaning set forth in Section 5.
“User” has the meaning set forth in Section 3.
“You” and “Your” mean the person, company or other legal entity which is downloading, installing or using the Software, and any successor or assignee of same.
“Your Responsible Claims” has the meaning set forth in Section 9.
“Warranty Period” has the meaning set forth in Section 8.
License Grant. You acknowledge and agree that the Software and Documentation are licensed, not sold. Subject to Your compliance with all the terms and conditions of this EULA, including Your timely payment of all applicable license fees and Your compliance with the activation process, Kanoa grants You a worldwide, personal, non-exclusive, non-transferable (except as set forth in Section 2) and non-sublicensable license to download, install and use the Software and Documentation solely for Your internal business purposes pursuant to the terms of this EULA until termination pursuant to Section 14. Kanoa reserves all other rights in and to the Software and Documentation not granted to You in writing herein.
Registered Instance. After You activate the Software using an Activation Key provided by Kanoa, You have a Registered Instance of the Software. You are licensed to activate only the number of Instances of the Software corresponding to the number of Activation Keys that You receive from Kanoa.
Transfer of Reseller/OEM Products to End Customer. If You are a system integrator or original equipment manufacturer and You have integrated the Software into a Reseller/OEM Product for purposes of reselling such integrated product to Your end customer, You may transfer the Software and Documentation, as part of the integrated product, to Your end customer upon their acceptance of this EULA and Your completion of the Software transfer registration process. If You are an end customer receiving a Reseller/OEM Product, You acknowledge and agree that (i) You have accepted and are bound by this EULA; (ii) the system integrator or original equipment manufacturer is not authorized to modify or amend this EULA or to offer any warranties or representations regarding the Software or Documentation on Kanoa’s behalf; (iii) Kanoa’s only obligations with regard to the Software and Documentation are as set forth in this EULA and the Supplemental Terms (if any); and (iv) You shall look solely to the system integrator or original equipment manufacturer for any defects in the Reseller/OEM Product, or incompatibilities with the Software.
Changes to the Software. Kanoa or its suppliers may make changes to the Software from time-to-time. Kanoa shall use commercially reasonable efforts to provide notice of any material changes to the Software via our website(s).
Support Services. This EULA does not give You the right to any Support Services that Kanoa may offer from time to time. Support Services are subject to Your payment of additional, applicable support fees. Kanoa offers multiple options for Support Services. For more information, contact Your local distributor or Kanoa representative or visit the Kanoa website.
Restrictions. You shall not reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain any source code of the Software. You shall not modify, adapt or create derivative works or improvements of the Software or Documentation. You shall not work around or bypass any technical restrictions or limitations in the Software. You shall not convert the Software or its parts to a different computer language or environment, either manually, or using an automated conversion tool, such that the Software or any modification thereof will run under any language, software or program other than that implemented by Kanoa. You shall not remove, minimize, block or modify any logos, trademarks, copyright notices or other notices of Kanoa or its licensors that are included in the Software or Documentation. Except as expressly stated herein, You shall not sublicense, rent, lease, sell, trade, resell, publish, transfer or lend the Software or Documentation without Kanoa’s prior written consent. You may not publish or publicly distribute any Activation Keys, serial numbers, access codes, unlock-codes, passwords or other end-user-specific registration information that would allow a third party to activate the Software without a valid license from Kanoa. You shall not permit any third party to violate any of the restrictions set forth in this Section 3. The restrictions set forth in this Section 3 do not apply to the extent they conflict with mandatory applicable Laws.
Hosted Systems. You acknowledge and agree that hosted commercial systems for the benefit of a third party are prohibited unless You obtain prior written approval from Kanoa. You shall not permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, hosting service or other arrangement without prior written approval from Kanoa.
Security. You are responsible for the security of Your systems and data, including Software on Your systems. You are responsible for excluding code, files, scripts, agents or programs intended to do harm, including, for example, malware, viruses, worms, time bombs, spyware and Trojan horses.
Third Party Claims. You acknowledge that Kanoa does not control Your processes or the creation, validation, sale, or use of Your products. Kanoa will not be liable for any claim or demand made against You by any third party, except for Kanoa’s obligations to indemnify You against infringement claims as expressly set forth in Section 9.
Responsibility for Users. You are responsible for Your employees, agents, representatives, authorized contractors and other users (collectively, “Users”) with respect to the Software, the Documentation and this EULA. Without limiting the generality of the foregoing, any breach of this EULA by Your Users, or any actions or omissions of Your Users pertaining to the Software, the Documentation or this EULA, will be deemed to be Your breach, action or omission, as applicable. Any use of the Software by Your Users will be solely for Your internal business purposes.
Use of Software; Compliance. Kanoa’s obligations under this EULA are conditioned upon Your compliance with, and You hereby agree to comply with, all terms, conditions and provisions of this EULA and with all Laws applicable to your use of the Software.
Audit. You agree that Kanoa may audit Your use of the Software for compliance with the terms and conditions of this EULA, upon reasonable notice. You agree to cooperate fully with Kanoa and its authorized agents in any such audit to assist in accurately determining Your compliance with the terms and conditions of this EULA. If such audit reveals any use of the Software by You other than in full compliance with the terms of this EULA, You shall take all necessary action to bring Your usage into compliance and shall pay Kanoa for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such non-compliance.
Payment Terms. You shall pay Kanoa the applicable fees for the Software and Documentation net 30 days from the date of invoice or as otherwise agreed by the parties in writing. Late payments not made within the time required shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by applicable Laws, whichever is lower.
Taxes. All prices are exclusive of any taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any governmental authority, including any interest, additions to tax or penalties applicable thereto (collectively, “Taxes”). You agree to pay or reimburse Kanoa for the payment of any applicable Taxes or duties including sales Taxes, value added Taxes, goods and services Taxes, consumption Taxes, and any withholding Taxes imposed by any government authority on Your use of or license to the Software and Documentation and on any payments made by You to Kanoa with respect thereto, excluding, however, income Taxes on profits which may be levied against Kanoa. If You are exempt from value-added or sales tax, then You must provide a valid, timely, and executed exemption certificate, direct pay permit, or other such government-approved documentation to Kanoa. Upon Your reasonable request, Kanoa shall provide you with a duly executed and properly completed IRS Form W-9. If You are required by Law to make any income tax deduction or to withhold income tax, after the application of reductions or exemptions available under applicable Law or international treaties, from any sum payable directly to Kanoa hereunder, You shall promptly effect payment thereof to the applicable tax authorities, You shall promptly provide Kanoa with official tax receipts or other evidence issued by the applicable tax authorities, and You shall increase the sum payable to Kanoa as necessary so that after such deduction or withholding has been made (including such deductions or withholdings applicable to additional sums payable under this Section 5), Kanoa receives an amount equal to the sum it would have received had no such deduction or withholding been made. For the avoidance of doubt, You are responsible for, and shall indemnify Kanoa for, any Taxes, including withholding Taxes, resulting from making licenses available to users in geographic regions outside the country in which You are located.
Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) under this EULA, whether orally or in writing, 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. Confidential Information of Kanoa includes (i) the Software, (ii) the technology, ideas, know-how, documentation processes, algorithms and trade secrets embodied in the Software, (iii) any Activation Keys related to the Software, and (iv) the terms and conditions of this EULA and any Supplemental Terms (including pricing). Confidential Information of each Party includes business and marketing plans, financial, technology and technical information, product plans and designs, information regarding customers and employees, and business processes disclosed by the Disclosing Party.
Exclusions. Confidential Information does not include information that: (i) is known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (iii) is received by the Receiving Party from a third-party without knowledge of any breach of any obligation owed to the Disclosing Party; or (iv) is or has been independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information.
Use and Disclosure of Confidential Information. The Receiving Party shall (i) not disclose Confidential Information of the Disclosing Party, except on a need-to-know basis to its employees, members, directors, officers, consultants and representatives (including financial, tax and legal advisors) (collectively, “Representatives”), (ii) use and copy Confidential Information only as required to exercise rights or perform obligations under this EULA, and (iii) protect Confidential Information from unauthorized use or disclosure using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care). The Receiving Party (a) shall ensure that all its Representatives receiving Confidential Information are bound by confidentiality obligations and use restrictions at least as restrictive as those herein, and (b) shall be liable for compliance with this Section 7 by each of its Representatives.
Permitted Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by a governmental agency, by operation of law, or if necessary, in any proceeding to establish rights or obligations under this EULA provided that the Receiving Party gives the Disclosing Party prior notice of the required disclosure (if permitted to do so under law) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. Except as expressly permitted in this Section 7, You shall not copy or disclose the Software or Documentation.
Publicity. Kanoa may identify You as a customer (by name, logo or other mark) on its websites and in customer lists and other marketing materials.
Limited Warranty. Kanoa warrants that the Software will conform in all material respects with the Documentation provided to You by Kanoa for a period of 90 days from the date You first use Your Activation Key to activate the applicable Instance of the Software (“Warranty Period”). This warranty will be void if the non-conformity is caused by Your failure to use the Software in accordance with the Documentation or comply with the terms and conditions of this EULA. Kanoa’s entire liability and Your exclusive remedy for breach of this warranty will, at Kanoa’s option, be to (i) correct or work around errors, (ii) replace defective Software or (iii) refund the license fees actually paid by You for defective Software returned by You. Following the Warranty Period, Support Services, if purchased by You from Kanoa, will apply to address covered issues in the Software.
Disclaimers. THE FOLLOWING DISCLAIMERS SET FORTH IN THIS PARAGRAPH SHALL APPLY (I) TO THE MAXIMUM EXTENT PERMITTED BY LAW AND (II) EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY PROVIDED BY KANOA. KANOA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SOFTWARE OR DOCUMENTATION, AND THE SOFTWARE AND DOCUMENTATION PROVIDED UNDER THIS EULA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. KANOA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SOFTWARE AND DOCUMENTATION, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERRUPTION OF USE AND FREEDOM FROM BUGS. KANOA MAKES NO WARRANTY THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SOFTWARE OR DOCUMENTATION WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES KANOA MAKE ANY WARRANTY THAT ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED OR THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY OTHER HARDWARE, SOFTWARE OR SERVICE. YOU ASSUME COMPLETE RESPONSIBILITY FOR DECISIONS MADE OR ACTIONS TAKEN BASED ON INFORMATION OBTAINED USING THE SOFTWARE. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY KANOA OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE ANY ADDITIONAL WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED IN THIS EULA. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE RISK OR COST ASSOCIATED WITH SUCH DEFECT AND ANY SERVICE AND REPAIR EXCEPT TO THE EXTENT COVERED BY SUPPORT SERVICVES. KANOA HAS NO OBLIGATION TO INDEMNIFY OR DEFEND YOU FROM ANY CLAIM OF ANY KIND ARISING OUT OF, OR RELATED TO, A BREACH OF ANY WARRANTY EXPLICITLY DISCLAIMED ABOVE, INCLUDING A CLAIM OF INFRINGEMENT. THE SOFTWARE MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET OR BE USED IN CONNECTION WITH HARDWARE AND OTHER PRODUCTS THAT ARE CONNECTED TO THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT KANOA DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE OR (B) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS OR NETWORKS. KANOA WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
Infringement Claim Indemnity. Kanoa shall defend You against any claim, suit or action brought against You by a third party alleging that the Software or Documentation infringes such third party’s copyrights, patents or trademarks, in each case, granted or registered by the United States (“IP Claim”), and shall indemnify You from any damages and costs finally awarded against You by a court of competent jurisdiction as a result of, or for amounts paid by You under a settlement approved by Kanoa in writing of, an IP Claim; provided, however, that You shall give Kanoa (i) written notice of any IP Claim within 15 days of Your receipt of such IP Claim (but your failure to give such notice will not relieve Kanoa of its defense and indemnification obligations except to the extent that Kanoa is prejudiced by such failure), (ii) the sole control of and authority over the defense and settlement of the IP Claim, and (iii) all information, cooperation and assistance reasonably required by Kanoa. Kanoa shall not admit liability or incur obligations on Your behalf without Your written consent.
Injunction. If a permanent injunction is obtained against Your use of the Software, Kanoa shall, in its sole discretion: (a) modify the Software so that it is non-infringing; (b) replace the Software with non-infringing Software that is functionally equivalent in performance; (c) obtain a license for You to continue to use the Software as provided hereunder; or (d) terminate the license for the infringing Software, have You return or destroy such Software, and refund to You any license fees actually paid by You to Kanoa for such enjoined Software, with payment of said refund to be amortized over 60 months from the date of termination. Kanoa may, in its sole discretion, provide any of the remedies specified in this Section 9 to mitigate infringement prior to the issuance of an injunction.
Exclusions. Notwithstanding anything to the contrary elsewhere in this EULA, Kanoa will have no defense or indemnification obligations or any liability to You if: (A) the IP Claim does not state with specificity that the Software or Documentation is the basis of the IP Claim; (B) the total aggregate fees Kanoa has received from You for the Software and Documentation under this EULA during the 12 months immediately preceding the IP Claim is less than $50,000 USD; or (C) an IP Claim is based upon or arises out of (I) compliance with Your instructions, specifications or designs, (II) the combination, operation or use of the Software or Documentation, or any part thereof, with any equipment, technology, software, processes or materials not provided by Kanoa, if the Software, Documentation or use thereof would not infringe without such combination, (III) Your failure to use the latest release or version of the Software (including any corrections, patches or enhancements) where such use would have prevented the IP Claim, (IV) modifications, enhancements, or derivatives of the Software not made by Kanoa, or (V) Your breach of this EULA or failure to comply with the Documentation (all of the items under this clause (C) collectively, “Your Responsible Claims”).
Sole and Exclusive Remedy. THIS SECTION 9 STATES KANOA’S SOLE OBLIGATION AND LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY AND ALL CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS AND RELATED CLAIMS.
Export. Your agreement to comply with all Laws applicable to your use of the Software includes all applicable export and re-export controls, embargoes, and economic and trade sanctions Laws, including those of the United States (“Export Laws”). You represent that any Software or Documentation provided hereunder and any derivatives thereof will not be (i) downloaded or accessed by a Sanctioned Person, (ii) exported, re-exported (including any ‘deemed exports’), shipped, distributed, delivered, sold, resold, supplied, or otherwise transferred, directly or indirectly, to any Sanctioned Person or otherwise in a manner contrary to the Export Laws, (iii) used for any purpose prohibited by the Export Laws, or (iv) used for non-civilian purposes (e.g. armaments, nuclear activities, weapons, rockets, long-range unmanned aerial vehicles any other usage in the field of defense and military). Without limiting the foregoing, You represent and warrant that (a) You are not a Sanctioned Person, and (b) You shall not download or otherwise access, or facilitate a third party’s download or access of, any Software or Documentation from a Sanctioned Country. You shall, at least once per year, review and update Your list of Users who have access to the Software and Documentation and confirm that no such User is a Sanctioned Person and that all such Users may continue to access the Software and Documentation in compliance with Export Laws. Kanoa may conduct the necessary Export Laws checks and, upon request, You shall promptly provide Kanoa with any necessary information. “Sanctioned Country” means a country or territory that is itself the subject or target of any comprehensive trade or economic sanctions (currently Belarus, Cuba, Iran, North Korea, Russia, Syria, and certain regions of Ukraine). “Sanctioned Person” means any person (i) included on an export control or sanctions list of designated or blocked persons maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control, the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union, any Member State of the European Union, or the United Kingdom; (ii) operating, organized, or resident in a Sanctioned Country; (iii) the government of, or acting for or on behalf of the government of, Afghanistan, Myanmar, Venezuela or a Sanctioned Country; or (iv) owned or controlled by one or more such persons. Additional countries or territories or additional persons not specifically identified above as Sanctioned Countries or Sanctioned Persons, as the case may be, may be or may become Sanctioned Countries or Sanctioned Persons for purposes hereof based on the definitions above without amendment hereof or any further action by the Parties.
Severability. If any provision of this EULA or portion thereof is found by a competent judicial authority to be unenforceable in any respect, such provision will be limited or eliminated to the minimum extent necessary so that the remainder of this EULA will continue in full force and effect.
Waiver. The failure by either Party to enforce any provision of this EULA will not be construed as a waiver of such provision. No waiver of any rights under this EULA will be effective unless in writing signed by both parties, and the waiver of any breach or default will not constitute a waiver of any other right under this EULA or any subsequent breach or default.
Entire Agreement; Supplemental Terms.
Entire Agreement. This EULA is the entire agreement between You and Kanoa relating to Your downloading, installation and use of the Software and the Documentation and related matters. You acknowledge and agree that this EULA controls all aspects of the relationship between the You and Kanoa with regard to the Software and Documentation and supersedes all written or oral statements, promises, representations and agreements between You and Kanoa, including Your purchase orders and/or other terms and conditions, and whether made or provided before or after Your acceptance of this EULA (“Other Terms”), which Other Terms shall be of no force or effect.
Existing Supplemental Terms. Notwithstanding anything to the contrary in the “Entire Agreement” paragraph above, during the time period that any separately signed Supplemental Terms are in effect between You and Kanoa, such separately signed Supplemental Terms will prevail over any inconsistent or conflicting terms of this EULA.
Feedback. If You provide any ideas regarding the Software or Documentation, including suggestions for changes or enhancements (collectively, “Feedback”) in the course of using or evaluating the Software or Documentation, You agree that such Feedback may be used by Kanoa in or as the basis for any enhancements or other modifications to the Software or Documentation without any condition or restriction and without any further consent from or any compensation to You.
Force Majeure. Neither Party will be in default nor liable for any delay or failure to comply with this EULA due to a natural disaster, pandemic, war or act of terrorism, act of government, or other circumstance beyond the reasonable control of the affected Party (each a “Force Majeure Event”) for the duration of the Force Majeure Event provided that such Party promptly notifies the other Party of the occurrence of the Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event does not permit You to delay or fail to comply with Your payment obligations under this EULA unless the Force Majeure Event results in the inability of the banking system to process payments.
Changes to the EULA. You acknowledge and agree that Kanoa may amend this EULA from time to time, and that the amendments will be effective upon Your clicking accept, indicating Your acceptance electronically or upon Your downloading, installing or using a new version of the Software. If You do not want to accept the terms of the amended EULA, then You shall not be able to use the new version of the Software, but You may continue using Your old version of the Software under the terms of the EULA previously accepted by You.
Notices. Notices related to this EULA shall be in writing and sent to the Party’s address as specified in the applicable Kanoa invoice. All notices sent to Kanoa shall be sent to the attention of the Legal Department.
Assignment. Except as expressly permitted by this EULA, You may not assign this EULA, in whole or in part, without Kanoa’s prior written consent. Kanoa may freely assign this EULA, in whole or in part, in Kanoa’s sole discretion. This EULA will be binding upon and inure to the benefit of each Party’s permitted successors and assigns.
Third Party Beneficiaries. There are no third party beneficiaries under this EULA.
Governing Law and Jurisdiction. This EULA will be governed by and construed in accordance with the Laws of the State of Washington, without regard to the principles of conflicts of law, and any dispute, controversy or claim arising out of, relating to or in connection with this EULA shall be brought exclusively in the state or federal courts of competent jurisdiction sitting in Seattle, Washington. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this EULA. Each Party consents to the personal jurisdiction, venue and convenience of such courts.
Counsel; Interpretation & Headings. The parties and their respective counsel have had an opportunity to review this EULA. The parties acknowledge and agree that: (i) the rule of construction to the effect that any ambiguities are resolved against the drafting Party will not be employed in the interpretation of this EULA; and (ii) the terms and provisions of this EULA will be construed fairly as to all parties hereto and not in favor of or against any Party, regardless of which Party was generally responsible for the preparation of this EULA. The section and paragraph headings used in this EULA are for convenience and reference only and do not form part of this EULA and shall not impact the meaning or interpretation hereof. A word importing the singular includes the plural and vice versa. The word “including” shall be interpreted to mean “including without limitation” or “including but not limited to.”
Independent Status of the Parties. The parties are independent contractors. This EULA does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
License Rights Applicable to the U.S. Government. The Software and Documentation are commercial products that were developed exclusively at private expense. If the Software and Documentation are acquired directly or indirectly for use by the U.S. Government, then the parties agree that the Software and Documentation are considered ‘Commercial Items’ and ‘Commercial Computer Software’ or ‘Computer Software Documentation’, as defined in 48 C.F.R. §2.101 and 48 C.F.R. §252.227-7014(a)(1) and (a)(5), as applicable. The Software and Documentation may only be used under the terms and conditions of this EULA as required by 48 C.F.R. §12.212 and 48 C.F.R. §227.7202. The U.S. Government will only have the rights set forth in this EULA, which supersedes any conflicting terms or conditions in any government order document, except for provisions which are contrary to applicable mandatory federal Laws. Kanoa will not be required to obtain a security clearance or otherwise be involved in accessing U.S. Government classified information.
Kanoa, Inc. End User License Agreement | February, 2024