Last updated: May 9th 2022
THE SENSEDGE MINI, SENSEDGE, SQUARE, KAITERRA DASHBOARD, KAITERRA API AND ALL OTHER KAITERRA PRODUCTS (THE "PRODUCTS") CONTAINS SOFTWARE PROGRAMS, HARDWARE, AND OTHER PROPRIETARY MATERIAL, THE USE OF WHICH IS SUBJECT TO THIS TERMS OF SERVICE AND END USER LICENSE AGREEMENT ("AGREEMENT"). BY CLICKING ON THE "ACCEPT" BUTTON OR BY USING THESE PRODUCTS, "YOU" (MEANING YOU PERSONALLY OR THE COMPANY YOU REPRESENT AND ON WHOSE BEHALF YOU ARE FULLY AUTHORIZED TO ENTER THIS AGREEMENT) ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT ("AGREEMENT"). YOU MUST READ, AGREE WITH, AND ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, WHICH INCLUDES THOSE TERMS AND CONDITIONS EXPRESSLY SET OUT BELOW AND THOSE INCORPORATED BY REFERENCE, BEFORE YOU ACCESS OR USE THE PRODUCTS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT ACCESS OR USE THE PRODUCTS.
1. GRANT. Subject to the terms of this Agreement, Kaiterra Limited ("Company"), the developer of this software, hereby grants you (and only you) a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive, revocable license to use the software in object code format provided or incorporated in a Product ("Software"), solely for your own internal use as installed in the Product in accordance with the applicable Product documentation. You must only use the Company API materials and documentation in accordance with applicable law.
2. RESTRICTIONS. You may not (and agree not to, and not authorize or enable others to), directly or indirectly: (a) copy, distribute, rent, lease, timeshare, operate a service bureau, or otherwise use for the benefit of a third party, the Software; (b) disassemble, decompile, attempt to discover the source code or structure, sequence and organization of, or otherwise reverse engineer, the Software (except to the extent applicable law prohibits restrictions on reverse engineering); (c) remove any proprietary notices from the Software; (d) publish or disclose to any third party any performance or benchmark tests or analyses relating to the Software or the Product; (e) delete, modify, hack, or attempt to change or alter the Product, or notices on the Product, or (f) use the Products to develop a competing service or product.
3. SUPPORT AND UPGRADES. This Agreement does not entitle you to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, "Support"). Any such Support for the Software that may be made available by Company shall become part of the Software and subject to this Agreement.
4. TITLE. Company and its suppliers shall exclusively retain all right, title and interest, including without limitation all patent, trademark, trade name and copyright, whether registered or not registered, in and to the Product (including the Software) and related documentation. All Software is licensed and not sold. Company and its suppliers reserve all rights not expressly granted herein, and no license or other implied rights of any kind are granted or conveyed except for the limited license provided herein.
Unless otherwise specifically noted in this Agreement, images, trademarks, service marks, logos and icons displayed on the Products or other marketing materials produced by Company, are the property of Company and its licensors and may not be used without Company’s prior written consent. Trademarks owned by third parties are the property of those respective third parties. The Product is the copyrighted property of Company, and it may not be reproduced, recreated, modified, accessed, or used in any manner or disseminated or distributed to any other party in violation of this Agreement. Any unauthorized use of any Product or materials owned by Company may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. You and your employees and agents will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the Products or related documentation delivered by Company.
5. WARRANTY DISCLAIMER. COMPANY PROVIDES The PRODUCT AND THE Software "AS IS" and without warranty of any kind, AND COMPANY hereby disclaims all express or implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, PERFORMANCE, ACCURACY, RELIABILITY, and non-infringement. This disclaimer of warranty constitutes an essential part of this Agreement.
6. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL COMPANY OR ITS LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, DAMAGES RESULTING FROM YOUR USE OF THE PRODUCT OR THE SOFTWARE OR (B) ANY AMOUNT IN EXCESS OF \$1000.
7. CONFIDENTIALITY AND FEEDBACK. "Confidential Information" means any non-public information relating to, or derived from, the Product or the Software, technical features and benchmark or performance results. You shall not use or disclose any Confidential Information except as expressly authorized in this Agreement and shall protect the Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. You may, in its sole discretion, provide feedback to Company regarding the use, operation, performance, and functionality of the Product or the Software, including identifying potential errors and improvements (collectively, "Feedback"). You hereby grant to Company a perpetual, irrevocable, worldwide, sublicenseable and royalty-free right to use the Feedback in any manner.
8. TERMINATION. This Agreement remains in effect unless earlier terminated as provided below. You may earlier terminate this Agreement and the license granted herein at any time by destroying or removing from all computers, networks, and storage media all copies of the Software. Company may terminate this Agreement and the license granted herein immediately if you breach any provision of this Agreement. Upon receiving notice of termination from Company you will destroy or remove from all computers, networks, and storage media all copies of the Software. Sections 2 through 9 shall survive termination of this Agreement. You agree Company may, under certain circumstances, immediately suspend or terminate your access to the Products or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of this Agreement or other incorporated agreements or guidelines; (2) discontinuance or material modification to the Products; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in Company’s sole discretion and without liability to you or any third party.
This Agreement is effective upon your acceptance and will continue in full force until terminated. You agree that Company, in its sole discretion, may terminate your use of the Products or any part thereof without prior notice. You agree that Company may immediately suspend your access to the Products or any part thereof in order to conduct an investigation in the event it believes you have violated this Agreement or if it determines that you are a repeat infringer of a third party’s intellectual property or other rights. Company may also, in its sole discretion and at any time, discontinue providing the Products, any part thereof, with or without notice. In addition to any other method of termination or suspension provided for in this Agreement, Company reserves the right to terminate this Agreement at any time and for any reason without prior notice to you. Further, you agree that Company will not be liable to you or any third-party for any termination or suspension of your access to the Products or any part thereof. You may terminate this Agreement at any time by immediately discontinuing all access to the Products and by providing notice to Company of such discontinuance. Termination or cancellation of this Agreement will not affect any right or relief to which Company may be entitled at law or in equity. Upon termination of this Agreement, you must terminate all use of the Products and any information or materials provided thereby. In the event of termination, you will not be entitled to any refund of any fees or other charges, if any, paid in connection with this Agreement.
9. MISCELLANEOUS. You shall comply with all applicable export laws, restrictions and regulations in connection with your use of the Software, and will not export or re-export the Software in violation thereof. This Agreement is personal to you and you shall not assign or transfer the Agreement or the Software to any third party under any circumstances; Company may assign or transfer this Agreement without consent. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them.
Company reserves the right, at its discretion, to change, modify, add, or remove portions of this Agreement at any time by posting such changes to this page. Company will endeavor to notify you of such changes via the email address you provided during your account registration. You understand that you have the affirmative obligation to check this Agreement periodically for changes and you hereby agree to periodically review this Agreement for such changes. Your continued use of the Products following the posting of changes to this Agreement will constitute your acceptance of those changes.
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by and construed under the laws of Hong Kong without regard to any conflicts of law provisions thereof and excluding the application of the United Nations Convention on Contracts for the International Sale of Goods. Any dispute, controversy, difference or claim out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute between you and Company regarding non-contractual obligations arising out of or relating to it, shall be referred to and finally resolved by binding arbitration in English in Hong Kong, administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted, provided that any orders and awards of the arbitrator may be enforced in any court of competent jurisdiction and either party may seek injunctive relief in any court of competent jurisdiction.