1.1 “Agreement” means collectively theseTerms, support services terms (if applicableto Customer), and any additional terms in theCompany’s website at the time of purchase orinstallation of the Product, or otherwisecommunicated to Customer by the Company.
1.2 “Authorized User” means anyindividual authorized by the Customer toaccess, install and use the Product, whereapplicable, including Customer’s employees,consultants, etc.
“Product” means the proprietary softwareplatform which the Company makesavailable to Customers, availableon:www.kaholo.io, in the format of asoftware as a service or as downloadablesoftware for installation on the Customer’ssystem, as applicable.
1.3.“Services” means the provision of theProduct to the Customer, and any otherservices provided by the Company to itsCustomers in connection therewith, whichmay be subject to additional payments, asspecified in the Company’s website.
3.1. The Company may provide supportservices to its Customers, which are subjectto additional fees, as specified on theCompany’s website from time to time, and inaccordance with the terms and fees specifiedtherein and the program purchased byCustomer.
3.2. During the term of the license, Costumeris required to download updates to theProduct, where applicable, when and as theCompany publishes them on its website.
3.3. Customer acknowledges that failure toinstall any updates to the Product when duemay result in loss of data, information ormaterials, in the Product not operatingproperly, in the occurrence of bugs andmalfunctions and other errors and risks, andconfirms that the Company shall not be liablein any way for damages or costs arising fromfailure to install any updates to the Productwhen due.
Customer’s use of theProduct and Services is subject to the full andtimely payment of any and all associated feesidentified on the Company website asapplicable to the Product plan and the Serviceselected by Customer (the “Fees”).
5.1. Customer acknowledges that use anddownload and installation, as applicable, ofthe Product and Services are dependent uponinternet connectivity, and agrees that it will befully and solely responsible for procuring andmaintaining its network accounts andconnections to the internet. The Companydoes not provide internet connectivityservices and shall not be liable for any and allproblems, conditions, delays, delivery failuresas well as all other losses or damages arisingfrom or relating to Customer’s networkconnections and accounts.
5.2. Customer shall be fully and solelyresponsible for any acts and omissions by itsAuthorized Users in connection with theAgreement and the use and download andinstallation, as applicable, of the Product andServices.
5.3. Customer is solely responsible for thesecurity and proper creation, use andtermination of all Authorized Users’ usernames, passwords and other security devicesused in connection with the Product and theServices and shall take all necessary steps toensure that Authorized Users’ user names andpasswords are kept confidential and secure,that access authorizations are not sharedbetween Authorized Users or made availableto unauthorized persons. The Companyreserves the right to require Customer, at theCompany’s sole discretion, to change anyaccess authorization, passwords or othersecurity measures used by Customer inconnection with the Product and Services, andCustomer shall promptly comply with anysuch requirement.
6.1. The Customer will only upload, share,use, or otherwise make available to thirdparties and/or to the Company, on or throughthe Product and Services, via the Company’sSAAS Product or otherwise, information,data, code, software components or any othercontent (collectively, “Customer Content”)that Customer has the right and authority toshare and use in connection with the Product,and for which it has any and all necessaryauthorizations to disclose to third partiesand/or to the Company, and grant to theCompany the licenses and rights as set forthherein. By uploading, sharing or otherwiseproviding Customer Content to the Company,via the Company’s SAAS Product orotherwise, the Customer hereby grants to theCompany a worldwide, limited, royalty-free,non-exclusive, sub-licensable license to use,reproduce, modify, adapt, publicly display,and transmit the Customer Content, solely forthe purpose of carrying out the Services inaccordance with the Agreement. In addition,where applicable, the Company may collectCustomer log filesfor the purpose ofoperating, providing, maintaining, protecting,managing, customizing, analyzing andimproving Company’s Product and Services.Any and all such log files are ownedexclusively by the Company.
6.2. Customer shall indemnify and hold theCompany harmless from and against any andall claims, costs, damages, losses, liabilitiesand expenses (including reasonable attorneys’fees) arising out of or in connection with: (i)any breach by Customer or its AuthorizedUsers of any term of the Agreement; (ii) anythird Party’s claim that the Customer Contentinfringes such third party’s rights, includingintellectual property rights.
8.2. Confidential Information. Customerexpressly acknowledges that the Product andServices contain information which isconfidential and proprietary to the Company,and Customer agrees to maintain suchinformation confidentially, using at aminimum the same degree of care as is usedfor Customer’s own confidential informationand in any event no less than a reasonabledegree of care, and not to disclose them toany third party without the Company’s priorwritten consent.
9.1. The term of the Agreement willcommence on the date in which Customer theProduct or Services (“Effective Date”) andshall continue until the earlier of: (i)expiration of the plan or subscription, asapplicable, which may be subject to automaticrenewal, in accordance with the Company’spolicies; or (ii) termination of the Agreementin accordance with the provisions herein.
9.2. The Company may terminate theAgreement, Customer’s access to the Productor Services, and the license granted toCustomer herein, in the event: (i) Customer orany Authorized User breached the Agreement,and such breach is not remedied within 14days of the Company’s notice of the breach;(ii) Customer ceases its business operations orbecomes subject to insolvency proceedingsand the proceedings are not dismissed within90 days; (iii) for any reason or no reason, byproviding the Customer with 60 days priorwritten notice.
9.5. Upon any termination or expiration ofthis Agreement, Customer shall immediatelycease operating the Product and all of itscomponents and destroy, uninstall and erase,where applicable, all copies of the Productand all of its components, including withoutlimitation on all systems and all types ofmedia and in computer memory.
10.2. FURTHERMORE, THE COMPANYASSUMES NO RESPONSIBILITY ORLIABILITY FOR: (I) ANYUNAUTHORIZED ACCESS TO OR USEOF THE COMPANY SERVERS AND/ORANY AND ALL CONTENT STOREDTHEREIN; (II) ANY INTERRUPTION ORCESSATION OF TRANSMISSION TO ORFROM THE SERVICES; (III) ANY BUGS,VIRUSES, TROJAN HORSES, OR THELIKE WHICH MAY BE TRANSMITTEDTO OR THROUGH THE SERVICESTHROUGH THE ACTIONS OF ANYTHIRD PARTY; AND/OR (VI) ANY LOSSOF CUSTOMER CONTENT FROM THESERVICES.
11. limitation of liability
11.2. NOTWITHSTANDING ANY OTHERPROVISION OF THE AGREEMENT,EXCEPT WITH RESPECT TO FRAUD ORWILLFUL MISCONDUCT, THECOMPANY’S ENTIRE LIABILITY UNDERTHE AGREEMENT SHALL NOT EXCEEDTHE LESSER OF THE (I) AMOUNTACTUALLY PAID TO COMPANY UNDERTHE AGREEMENT DURING A THREE (3)MONTHS PERIOD PRIOR TO THECLAIM RAISING THE LIABILITY; OR (II)USD 500.
12.7. Entire Agreement. The Agreementconstitutes the entire understanding betweenthe parties, and supersede all prior discussions, representations, understandings or agreements,whether oral or in writing, between the partieswith respect to the subject matter of theAgreement. Any modification or amendmentto these Terms must be in writing and signedby authorized representatives of both parties.