The following terms and conditions (as may be updated as provided below, the “Software License Terms and Conditions”) govern your (you, in such capacity, “Customer”) purchase of certain Software Licenses (the “Services”) via Kauneonga, LLC’s (and/or any of its subsidiaries or other affiliates, “Kauneonga”) sales team, web-based portal or API (application programming interface). If you are registering for a Kauneonga account or using the Services on behalf of an organization, then you represent that you have the authority to bind that organization to the Software License Terms and Conditions and the remainder of the Agreement (as defined hereinafter), and that the term “Customer” will refer to such organization.

BY REGISTERING FOR AN ACCOUNT OR USING THE SERVICES (THE FIRST DATE ON WHICH EITHER OCCURS, THE “EFFECTIVE DATE”), YOU (AND YOUR ORGANIZATION, IF APPLICABLE) AGREE TO BE LEGALLY BOUND BY THE AGREEMENT, INCLUDING ANY AMENDMENTS OR UPDATES FROM TIME TO TIME. PLEASE REVIEW THE AGREEMENT CAREFULLY. ONCE ACCEPTED, THE AGREEMENT BECOMES A LEGALLY BINDING COMMITMENT BETWEEN YOU AND KAUNEONGA. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU SHOULD NOT USE KAUNEONGA’S SERVICES.

ARTICLE I. DEFINITIONS

For purposes of this Software License Terms and Conditions, the following terms shall mean:

1. Affiliate(s)
   Those entities under common control and ownership of the entity first identified as the Customer above. Common control and ownership is defined as direct or indirect ownership of a voting interest of greater than fifty percent (50%) or the right or power, directly or indirectly, to elect a majority of the Board of Directors. Customer agrees to confirm the Affiliate status of an entity upon request by Kauneonga. In the event an Affiliate ceases to comply with this definition, this Software License Terms and Conditions will terminate solely as it relates to the former Affiliate in accordance with the termination provisions in Article IX, Sections (D) and (E).
2. Computer(s)
   The computer (including operating system) or device used by Licensed Users to access and use the Licensed Products through the means of an end user software program or interface (including a web-browser or Java-enabled interface) and which processes and/or issues commands for processing. These include, but are not limited to, personal computers, network computers, Windows terminals, wireless devices, smartphones and other similar hardware or display devices
3. Confidential Information
   Confidential Information is any information disclosed by Kauneonga or Customer, which is not generally known to the public and which the disclosing party takes reasonable precautions to maintain as confidential and which, if disclosed in writing, is expressly marked with a confidential or proprietary legend or, if disclosed orally or visually, is identified as confidential or proprietary at the time of disclosure. The party disclosing any Confidential Information is the “Discloser” and the party receiving Confidential Information is the “Recipient.”
4. Cloud
   The method, means, platform or host through which Customer will access the Licensed Products. Kauneonga’s products and services are delivered or accessed over the Internet, which means that as used in this Agreement, the Cloud refers to Kauneonga’s computing services—including third-party managed platforms, servers, storage, databases, networking, software, analytics, and intelligence provided and accessed by Licensed Users over the Internet.
5. Developed Software
   Software programs or modifications to the Licensed Products developed by Kauneonga for Customer pursuant to the Software Services Agreement (or other similar engagement) including source (if any) and object code for such Developed Software and any related documentation. Kauneonga shall own all rights, title and interest in any Developed Software.
6. Intellectual Property
   As used in the Software License Terms and Conditions, Intellectual Property means all intellectual property or proprietary rights in any jurisdiction throughout the world, including without limitation: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto, and all patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, divisionals, extensions, and reexaminations thereof; (b) all trademarks, service marks, trade dress, logos, slogans, trade names, and Internet domain names, together with all translations, adaptations and combinations thereof, all applications, registrations, and renewals in connection therewith, and all goodwill associated with any of the foregoing; (c) all copyrights and other works of authorship, and all applications, registrations, and renewals in connection therewith; (d) all trade secrets and other confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, Customer and supplier lists, pricing and cost information, and business and marketing plans and proposals); (e) all proprietary and intellectual property rights in the foregoing; and (f) all copies and tangible embodiments of the foregoing (in whatever form or medium).
7. License Fee
   The fee charged for the use of the Licensed Products.
8. Licensed Product(s)
   The Software, including any computer programming code, object code and any source code which may be provided and any Software Updates which are, or may be described more fully on any document (whether a Statement of Work, an invoice or any other document) directly or through any other communication such as by email.
9. Licensed Users
   A Licensed User is an individual that is authorized to and does login and use the Licensed Products and/or Developed Software.
10. Software
    The Licensed Products and Developed Software.
11. Start Date

The date on which this Agreement becomes effective and binding on the parties, which shall be the earlier of (a) the date this Agreement is signed by both parties; (b) the date the Customer first accepts this Agreement electronically (including by clicking “I Accept” or similar); or (c) the date the Company first makes the Services or Products available to or accessible by the Customer. If none of the foregoing can be determined, the Start Date shall be the date the first payment is received or the first performance or delivery under this Agreement occurs, as applicable.

1. Covered Period
   The time period during which this Agreement shall be in force and effect and during which the services shall be provided. The initial Covered Period begins on the Start Date referenced above and continues for one (1) year, and will automatically renew unless canceled by either party by providing written notice thirty (30) days prior to the end of each Covered Period.
2. Software Updates
   Program updates (including cumulative updates containing corrections to the Licensed Products) and new system versions and releases containing enhancements and modifications provided during the Covered Period.

ARTICLE II. SOFTWARE LICENSE (“LICENSE”)

1. LICENSE GRANT

(A) Subject to the terms and conditions in this Agreement and after Customer pays and Kauneonga receives the License Fee, Kauneonga grants to Customer a non-exclusive, non-transferable, limited license to use the Licensed Products described on any attachment to this Agreement and to access the Licensed Products through the Cloud in the United States or Canada during the term of this Agreement. Kauneonga represents that it possesses all rights and interests in the Licensed Products necessary to enter into this Agreement. Customer has the right to use only the Licensed Products identified in this Agreement.

2. LICENSE USE

(A) Customer shall access the Licensed Products only through the Cloud. Customer shall not copy or download any of the Licensed Products without the prior written permission of Kauneonga. Customer shall not allow any of the Licensed Products to be used by any other person and/or company. Access to the Licensed Products is limited to Licensed Users, which may include: (i) employees of Customer, and, (ii) agents, contractors, consultants or representatives engaged by Customer who require access to the Licensed Products to perform their tasks.

(B) Customer shall be responsible for the acts and omissions of Licensed Users arising from access to any of the Licensed Products accessed by Customer. None of the Licensed Products may be sublicensed by Customer for any purpose or reason. Customer shall not reverse engineer any part of the Licensed Products, distribute, sell or otherwise transfer any part of the Licensed Products; or remove the patent, copyright, trade secret, trademark, or other proprietary protection legends or notices that appear on or in any of the Licensed Products.

3. AUDIT

Kauneonga, at its own expense, may audit Customer’s use of the Licensed Products. If the results of the audit determine an increase in total Licenses used during the audited period, the License Fee for the Licensed Products and their respective support charges may increase from the date of the audit for the remainder of the Agreement term.

4. CUSTOMER RESPONSIBILITIES

Customer is responsible for providing any and all necessary hardware and connectivity to allow Users to use the Licensed Products, including all security measures, such as end-point protection. Kauneonga may, upon request from Customer, provide recommendations for the initial implementation and activation.

ARTICLE III. MAINTENANCE

1. Maintenance & Support Services

(A) Services Defined:

Kauneonga shall provide Customer with regular maintenance and support services, including all Software Updates. Kauneonga provides regular maintenance and support services Monday through Friday between the hours of 9:00 a.m. and 6:00 p.m. EST. After-hours support is also available outside of these hours for an additional fee. The regular maintenance and support services described above include the initial activation of the Software, as well as limited training as described in the Order Form or any other document attached or made an attachment to this Agreement. Customer may request and Kauneonga may provide additional regular maintenance and support for the Licensed Products licensed by Customer under this Agreement to the same extent and degree that Kauneonga makes such services generally available.

(B) Additional Support, Training, and Professional Services

In addition to regular support services, Customer may request in writing and pay for additional support such as Enterprise Support, additional training, other professional services or any other level of support described on any document (whether a Statement of Work, Order Form, Quote, or invoice). Enterprise Support is available for a quarterly fee equal to a $1,500 minimum charge or 15% of license fees, whichever is greater.

(C) All Inclusive Coverage:

Customer may not elect to exclude any of the Licensed Products from any regular maintenance services during the Period of Coverage.

(D) Central Point of Contact:

Customer agrees to make a reasonable effort to establish and maintain an internal competency center or help desk which provides a central point of contact with Kauneonga to coordinate maintenance provided under this Agreement.

(E) Automatic Renewal of Agreement:

Unless canceled by either party by written notice no less than thirty (30) days prior to the end of the Covered Period, this Agreement shall automatically renew for one (1) year.

(F) Maintenance Interruption:

Kauneonga may perform scheduled or emergency maintenance from time to time. Scheduled maintenance will be conducted in accordance with Kauneonga’s then-current maintenance policies and, where commercially reasonable, Kauneonga will provide advance notice, which may include notice through Kauneonga’s status page at status.kauneonga.com or another commercially reasonable communication method. Kauneonga may also perform emergency maintenance without advance notice where necessary to protect the security, availability, or integrity of the Services. Maintenance may temporarily limit or interrupt access to the Services and will not be deemed a breach of this Agreement.

2. Maintenance & Support Exclusive Remedies

Kauneonga will regularly update and provide corrections and fixes for the Licensed Products at no additional charge subject to the following conditions: 

Kauneonga’s obligation to provide corrections under this provision shall apply only to the most current release of the Licensed Products. In the event Customer asserts any nonconformance in the Licensed Products, Customer shall provide written notice to Kauneonga in sufficient detail to allow Kauneonga to duplicate the alleged nonconformance. Should Kauneonga fail to provide such correction within a commercially reasonable time, Customer’s sole and exclusive remedy shall be to receive a refund of any Maintenance & Support fees paid during the quarterly period of nonconformance.

3. Payment for Maintenance & Support Services

Maintenance & Support fees will be invoiced by Kauneonga to the Customer. If Customer fails to timely remit Maintenance & Support fees, Kauneonga will have no duty to provide additional maintenance and support services under this Agreement. For the current quarter and the remaining duration of this Agreement, the cost of the Licensed Products and their associated support charges are subject to increase. During each quarter, if Customer requires an increase in total Licenses, the License Fee for the remainder of the quarter may increase to reflect this change.

ARTICLE IV. PROPRIETARY RIGHTS AND MUTUAL NON-DISCLOSURE

1. PROPRIETARY RIGHTS

(A)  Kauneonga owns all rights, title, and interest pertaining to the Licensed Products, the Software, and the Developed Software. This ownership includes all intellectual property rights associated with these items, as well as any enhancements, modifications, or updates made to them. Nothing in this Agreement conveys to Customer any ownership interest or right in or to the Licensed Products, the Software, or the Developed Software. The Licensed Products may also include copyrighted and proprietary material of third parties for which Kauneonga has been granted a right to use and distribute. Kauneonga and any third-party suppliers shall retain ownership of all rights, title and interest to their respective portions of the Licensed Products and all releases thereof.

(B) Customer shall notify Kauneonga in writing immediately upon learning of any actual or suspected unauthorized use, unauthorized possession, infringement or violation of or related to any of the Licensed Products, the Software or the Developed Software. Customer shall promptly furnish Kauneonga with full details of such situation in writing, assist in preventing any recurrence thereof, and cooperate at Kauneonga’s expense in any litigation or other proceedings reasonably necessary to protect the Licensed Products and/or Kauneonga’s Intellectual property rights.

(C) The Licensed Products contain software protection procedures (SPC) which, in the event of unauthorized use, may limit access to the Licensed Products or which may limit the number of users having access to the Licensed Products. The software protection procedures contained in the Licensed Products will only limit access to the Software and will not destroy any of Customer’s programs or data.

2. MUTUAL NON-DISCLOSURE

Pursuant to this Agreement, each party may, from time to time, furnish the other party to this Agreement with certain Confidential Information. Recipient will exercise the same level of care to protect the confidentiality of Confidential Information as it uses for its own confidential information, with such care not being less than a reasonable standard, for a period of one (1) year. The Confidential Information, including any trade secret, confidential or proprietary information contained within the Confidential Information is not to be disclosed to any persons other than the employees of Recipient that require the information to comply with the obligations contained in this Agreement. However, Confidential Information may be disclosed to counsel, consultants, subcontractors or agents of the Recipient who have a need to know, have been instructed that it is Confidential Information, and who have executed a written agreement substantially in the form of this section of the Agreement prior to disclosure of the Confidential Information. The disclosure of Confidential Information does not grant to the Recipient any license or rights to any trade secrets, or under any patents or copyrights, except as expressly provided by the licenses granted in this Agreement. Except as otherwise provided in this Agreement, all Confidential Information is provided on an “as is” basis. The obligations of Recipient with respect to any particular portion of Confidential Information shall terminate (or shall not attach) when any of the following occurs:

(i) The information was in the public domain at the time of Discloser’s communication to Recipient.

(ii) The information entered the public domain in a manner that did not violate any law or the rights of any third party or Kauneonga through no fault of Recipient subsequent to the time of Discloser’s communication to Recipient.

(iii) Recipient had lawful possession of the information free of any obligation of confidence at the time of Discloser’s communication to Recipient.

(iv) The information was independently developed by Recipient.

(v) The information was lawfully disclosed to Recipient by a third party whose possession and disclosure of the information does not violate any law or the rights of any third party or Kauneonga.

(vi) The disclosure of the information is required by law, valid subpoena, or court or government order, provided, however, that Recipient provides prompt notice of such required disclosure and Recipient shall have made a reasonable effort to obtain a protective order or other reliable assurance affording it confidential treatment and limiting its use solely for the purpose for which the law or order requires. The parties agree that a breach of the confidentiality obligations by Recipient shall cause immediate and irreparable monetary damage to Discloser and shall entitle Discloser to injunctive relief in addition to all other remedies.

ARTICLE V. WARRANTY, CLAIMS, REMEDY AND EXCLUSIONS

1. WARRANTY EXCLUSION

(A) THIS AGREEMENT PROVIDES LICENSES AND SERVICES AND IS NOT A SALE OF GOODS.

(B) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. KAUNEONGA MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE LICENSED PRODUCTS OR ANY MODIFIED PORTIONS OF THE SOFTWARE.

(C) ALL SERVICES PROVIDED BY KAUNEONGA UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS. KAUNEONGA WILL PERFORM ALL SERVICES IN A COMMERCIALLY REASONABLE MANNER. KAUNEONGA MAKES NO WARRANTY AS TO THE ADEQUACY OR CAPACITY OF ANY HARDWARE OR THIRD-PARTY SOFTWARE TO ATTAIN SOME OR ALL OF THE PERFORMANCE OBJECTIVES OF CUSTOMER. MANY FACTORS, INCLUDING BUT NOT LIMITED TO THE TYPE OF NETWORK, THE AMOUNT OF TOTAL NETWORK TRAFFIC, AND THE TYPE AND PATTERN OF USAGE OF THE LICENSED PRODUCTS OR OTHER SOFTWARE ON THE NETWORK WILL IMPACT THE PERFORMANCE OF THE LICENSED PRODUCTS.

2. Customer represents and warrants as follows:
3. It understands, acknowledges and agrees Kauneonga owns all rights, title and interest in and to all Licensed Products, the Software and the Developed Software, including all Intellectual Property rights.
4. Customer’s use of the Intellectual Property Rights on or as part of Licensed Products or otherwise, including Customer’s use of any Patent, Trademark or Copyright shall inure to the benefit of Kauneonga for all purposes.

iii. Customer will not make any revisions, modifications, changes, alterations or adaptations to any Licensed Products, the Software, or the Developed Software.

1. It has the right to enter into this Agreement.
2. EXCLUSIVE REMEDIES

For any breach of any of the warranties contained in this Agreement, Customer’s exclusive remedy shall be as follows:

Customer shall have sixty (60) days following the first date on which Customer has access to the Licensed Products to confirm the Licensed Products conform to the Customer’s needs. Customer shall provide written notice of any nonconformance to Kauneonga within this sixty (60) day period. Such notice shall be in sufficient detail to allow Kauneonga to identify the non-conformance. Kauneonga shall, at no additional charge, correct such non-conformance or provide a mutually acceptable plan for correction by thirty (30) days following the receipt of Customer’s written notice to Kauneonga. Should Kauneonga fail to provide such correction or mutually acceptable plan by such date, Customer’s sole and exclusive remedy shall be to terminate this Agreement by written notice in accordance with the termination provisions contained in Article IX. Such notice of termination must be received by Kauneonga within fifteen (15) days following the date for correction or plan for correction. Upon such notice of termination, Customer shall be entitled to receive a refund of any License Fees paid during any period of non-conformance, but shall not be entitled to receive any refund of any set up, implementation, activation or other fees paid. Customer waives any and all claims for damages, including any and all claims for attorneys’ fees arising from any alleged breach of this Agreement by Kauneonga.

ARTICLE VI. LIMITATION OF LIABILITY

KAUNEONGA’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE LICENSED PRODUCT(S) DURING ANY PERIOD OF NON-CONFORMANCE. IN NO EVENT SHALL KAUNEONGA BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, PROFITS, DATA, (OR USE THEREOF), OR BUSINESS INTERRUPTION ARISING OUT OF ANY ACT OR FAILURE TO ACT, WHETHER SUCH DAMAGES ARE LABELED IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY EXCLUSIVE REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

ARTICLE VII. INFRINGEMENT CLAIMS

(A) Kauneonga shall indemnify, defend and hold Customer harmless from and against any loss, cost, damage, liability, or expense (including reasonable legal fees) suffered or incurred by Customer in connection with any U.S. patent, or any copyright or other intellectual property infringement claim by any third party with respect to the Licensed Products. This indemnity obligation shall apply only to the extent that Customer notifies Kauneonga in writing within five (5) days after Customer becomes aware of such claim, grants to Kauneonga the authority to defend, compromise or settle the claim of infringement, and provides Kauneonga any Customer information relevant to such claim. Kauneonga shall have no liability for any claims of infringement that are based on:

(i) a modification to Licensed Products by Customer or any User;

(ii) the use of a prior or modified release, if the infringement claim could have been avoided by the use of a current unmodified release; or

(iii) upon a use of the Licensed Products in a manner not contemplated by this Agreement.

(B) Kauneonga further agrees that if Customer is prevented from using the Licensed Product(s) due to an actual or claimed infringement under subsection (A) of this Section, then at Kauneonga’s option, Kauneonga shall promptly either:

(i) Procure for Customer, at Kauneonga’s expense, the right to continue to use the Licensed Product(s);

(ii) Replace or modify the Licensed Product(s), at Kauneonga’s expense, so that the Licensed Product(s) become non-infringing; or

(iii) Terminate the Agreement as it relates to the infringing Licensed Product and return Customer’s License Fees for the infringing Licensed Product(s) in the event that neither (i) or (ii) are reasonably feasible.

(C) Subsections (A) and (B) of this Section shall constitute Kauneonga’s entire obligation to Customer with respect to any claim of infringement.

(D) Customer shall defend and indemnify Kauneonga, its employees, officers, directors and agents from and against all costs and damages due to injuries to persons or damage to real or tangible personal property proximately caused by Customer during the performance of this Agreement. However, this indemnity shall not apply to the extent that such injury or damage is caused by Kauneonga’s own negligence or willful misconduct.

ARTICLE VIII. ARBITRATION

Customer and Kauneonga each agree to resolve any claim arising from or relating in any way to (i) the use of our Services, (ii) these Software License Terms and Conditions, or (iii) the relationship between Customer and Kauneonga (“Claim”) that cannot be resolved directly between Customer and Kauneonga, shall be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), rather than in court.  The scope of this arbitration agreement and the arbitrator’s authority shall be determined by the arbitrator. The arbitration will be held in Broward County, Florida, to the exclusion of all other venues or locations. The fees of the arbitrator will be governed by the rules of the AAA. Neither party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of our Services, or infringement of intellectual property rights without first engaging in arbitration or the informal dispute resolution process described above.

The arbitrator shall have experience in the areas of information technology or computer software licensing, installation or implementation. For all claims arising under federal law, substantive U.S. law shall apply, and for any claims arising under state law, Florida law shall apply. The written decision of the arbitrator shall be final, non-appealable, binding and convertible to a court judgment in any appropriate jurisdiction. Kauneonga shall have the affirmative right to seek injunctive relief to prevent unauthorized use or abuse of Kauneonga’s Services, or infringement of intellectual property rights, without being required to engage in arbitration or the informal dispute resolution process prior to seeking such injunction.

ARTICLE IX. CLASS ACTION WAIVER

CUSTOMER WAIVES, WITH RESPECT TO ANY DISPUTE: (I) THE RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER; AND (II) THE RIGHT TO JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF ANY OTHER PERSON.

 This waiver is referred to herein as the “Class Action Waiver.” Customer and Kauneonga agree that no arbitrator shall have authority to conduct any arbitration in violation of the Class Action Waiver or to issue any relief that applies to any person or entity other than Customer and/or Kauneonga individually. The parties acknowledge that this Class Action Waiver is material and essential to the arbitration of any claims and is non-severable from this Agreement. The parties acknowledge and agree that under no circumstances will a class action be arbitrated.

ARTICLE X. TERM AND TERMINATION

(A) The license granted under this Agreement shall begin on the Start Date and remain in effect for a period of 13 months and shall automatically renew for an unlimited number of successive one (1) year periods, unless otherwise terminated under this section.

(B) Any add-ons, support packages, or similar services initiated during the term of this Agreement shall be coterminous with the then-current term, subject to subsection (E). Consequently, once a Customer subscribes to an add-on or support service, they shall be obligated to pay for that service through the remainder of the existing term.

(C) Customer may terminate this Agreement at any time upon thirty (30) days written notice to Kauneonga, subject to subsection (D) and (E) below. Subject to subsection (D), Customer may terminate any service or maintenance agreements that are incorporated by reference into this Agreement without terminating the license under this Agreement.

(D) If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate this Agreement. If such default is incapable of cure, the other party may terminate this Agreement immediately upon written notice of its desire to terminate.

(E) Termination of this Agreement, or any portion of it, shall not limit either party from pursuing other remedies available to it, including injunctive relief. Such termination shall not relieve Customer of its obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement and any service or maintenance Agreement incorporation by reference. Articles V, VI, VII, VIII, XIII shall survive termination, cancellation or expiration of this Agreement.

(F) Upon termination, the License to use the Licensed Products shall be immediately revoked and all licensed products and supporting materials will be returned to Kauneonga within ten (10) days, or destroyed at the election of Kauneonga, and Customer shall provide an affidavit certifying destruction to Kauneonga.

ARTICLE XI. PAYMENT

(A) In consideration for the license granted in Article II, Customer will pay to Kauneonga the license fees listed on any Service Order. Customer must enable autopay immediately after purchasing Services. 

(B) In addition to the charges due under this Agreement, and even if Customer shall provide a tax exemption number or affidavit of exemption, Customer shall be responsible for all taxes (including sales, use property excise, value added and gross receipts but not including taxes based on Kauneonga net income) and import duties and fees due.

(C) Customer agrees to pay for all uncontested amounts due under this Agreement within ten (10) days after the date of invoice. Customer shall have ten (10) days after the invoice date to contest in good faith any specific amounts and items charged with which Customer takes issue. Past due uncontested amounts will bear interest of two percent (2%) per month from the due date or the highest rate permitted by law if less.

(D) For any Customer account that is unpaid more than thirty (30) days after Customer receives the invoice or other demand for payment, Kauneonga may suspend the Customer account. For any Customer account that is unpaid more than ninety (90) days after Customer receives the invoice or other demand for payment, Kauneonga may delete the Customer account including any and all Customer Data.

(E) All payments made hereunder are nonrefundable except as specifically provided otherwise in this Agreement.

(F) Unless otherwise designated by Kauneonga in writing in accordance with this section, all fees and charges for Services hereunder shall automatically be subject to an eight (8) percent per annum increase adjustment.

ARTICLE XII. EXPORT CONTROLS

Customer shall not export, re-export, or otherwise transmit, directly or indirectly, any Licensed Products, the Software or the Developed Software, software, information, data or other materials received under this Agreement except in full compliance with all United States, Canada, and other applicable acts, laws, and regulations. Customer shall indemnify, defend and hold harmless Kauneonga from any loss, liability, cost or expense (including reasonable legal fees) related to any action arising from Customer’s failure to comply with this section.

ARTICLE XIII. GENERAL

(A) The waiver of one breach hereunder shall not constitute the waiver of any other subsequent breach.

(B) All notices shall be in writing and either i) sent by certified mail, postage prepaid, return receipt requested, ii) by nationally recognized carrier (i.e. FedEx, UPS, etc), or iii) delivered by courier to the address written above or such other address as notified in writing to the other party. Notice shall be deemed to be made on the date received.

(C) This Agreement shall be the most basic enumeration of the terms and conditions under which the contemplated transactions will be governed. An attachment or addendum to this Agreement shall modify this Agreement to the extent of any conflict in business or monetary terms. No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by the parties. The headings and titles to the sections of this Agreement are inserted for convenience only and shall not be deemed a part of, or affect the construction or interpretation of, the provisions of this Agreement. 

(D) All disputes involving the subject matter of this Agreement, except actions arising under the patent and copyright provisions of the U.S. Code, shall be determined under the law of the State of Florida without regard to its conflict of laws provisions and venue for any dispute shall be in the State and Federal Courts located in Broward County, Florida.

(D) Each party acknowledges that the other party’s employees are critical to the servicing of its customers. Accordingly, each party agrees not to employ or otherwise engage an employee of the other party, or interfere in any way with any employee’s relationship with their employer, during the term of this Agreement, for a period of twelve (12) months following the termination of this Agreement, and for twelve (12) months following such employee’s last day of employment with their original employer, unless mutually agreed upon in writing by both parties in advance. In the event that a party violates this provision, the hiring party shall pay the other party an amount equal to one hundred percent (100%) of the former employee’s annual salary at the time of the end of employee’s relationship with the employer. Notwithstanding the foregoing, this payment does not restrict the other party’s rights or remedies with respect to any acts that may constitute competition or breach of confidentiality by the former employee, nor does it limit the other party’s right to seek additional remedies as permitted by law. Any waiver of this provision must be documented in writing, signed by both parties, to be effective.

(E) Neither party shall be liable for any costs or damages resulting from its inability to perform any obligations under this Agreement due to a natural disaster, pandemic, epidemic, or actions or decrees of governmental bodies not the fault of the affected party (“Force Majeure Event”). A Force Majeure Event shall not constitute a breach of Agreement. The party so affected shall immediately give notice to the other party of the Force Majeure Event. Upon such notice, all obligations of the affected party under this Agreement which are reasonably related to the Force Majeure Event shall be immediately suspended, and the affected party shall do everything reasonably possible to resume performance as soon as practicable.

(F) Customer understands that Kauneonga’s business partners are independent entities and, except to the extent they are acting as subcontractors pursuant to a Software Services Agreement, Kauneonga is not liable for nor bound by any acts of such business partners.

(G) If any provision of this Agreement is held to be invalid or unenforceable, such decision shall not affect the validity or enforceability of the Agreement or any of the remaining provisions.

(H) Kauneonga may assign this Agreement. Customer shall not assign this Agreement.

(I) In the event of any direct contradiction between these Software License Terms and Conditions and the terms of any Service Order, the terms of such Service Order shall control. In the event of any other direct contradiction between the Software License Terms and Conditions and any other portion of the Agreement, the Software License Terms and Conditions shall control.

(J) All amounts stated in and payable under this Agreement shall be denominated in United States Dollars and shall be payable in ready funds in United States dollars to Kauneonga designated United States bank account. 

(K) The parties hereto are independent contractors and neither party nor its employees, directors, agents, or consultants shall hold itself out to be or allow itself to be considered as an agent or an employee of the other party.

(L) Kauneonga’s collection, use, and disclosure of Personal Data are governed by its Privacy and Security Policies, which are available on Kauneonga’s website.  By using the Services, Customer acknowledges that it has read and understood Kauneonga’s Privacy and Security Policies.