SOFTWARE SERVICES AND LICENCE AGREEMENT – KINOBI PRO

 

Mondada Pty Ltd ABN 47 139 833 597 (Mondada) provides Services (as defined herein) and licenses the Kinobi Pro Software (both as defined herein) subject to the terms and conditions set out in this Software Services and Licence Agreement (Agreement).

By receiving the Services or using the Kinobi Pro Software, the Customer (as defined herein) agrees to be bound by the terms of this Agreement from the Effective Date (as defined herein).

  1. DEFINITIONS
    The following capitalized terms have the following meanings when used in this Agreement.

    1. Customer means the entity receiving the Services or using the Kinobi Pro Software.
    2. Customer Data means data in electronic form input or collected through the Services and the Kinobi Pro Software, including by Users.
    3. Cloud Services means the (i) patch management and (ii) software packaging (including Kinobi Pro Software) services provided to the Customer by Mondada when the Customer orders “Cloud” on the Site, as described in the Documentation.
    4. Documentation means the usage guides and policies for the Cloud Services, the Self-Hosted Services and the Kinobi Pro Software, as updated from time to time, accessible via the Site.
    5. Kinobi Pro Software means Products, Packages, Metapackages, and tools developed by Kinobi to extend the functionality of the Installer and assist with creating Disk Images, and:
      1. Package means a software package containing a Product to be installed on a computer or DiskImage using the Installer;
      2. Product means a third party’s software product, product component or product update;
      3. Metapackage means a Package containing other Packages;
      4. DiskImage means a single file containing the complete contents and structure representing a data storage medium or device, such as a hard drive; and
      5. Installer means the application included in Apple Inc’s macOS that extracts and installs files out of Packages.
    6. Kinobi Pro Software Licence means a non-exclusive, non-transferable licence to use, and permit the Users of the Kinobi Pro Software to use, the Kinobi Pro Software and the applicable Documentation.
    7. Services means, as applicable, the Self-Hosted Services or the Cloud Services that are ordered by the Customer, and made available by Mondada, as described in the Documentation.
    8. Self-Hosted Services means the (i) patch management and (ii) software packaging services (including Kinobi Pro Software) provided to the Customer by Mondada when the Customer orders “Self-Hosted” on the Site, as described in the Documentation.
    9. Site means the website or any other Mondada website that replaces it.
    10. Subscription Fees is defined in section 3 of this Agreement.
    11. Subscription means the Customer’s right to use the Kinobi Pro Software to install a number of Products, and or any Add On Product, up to the maximum covered by the subscription purchased by the Customer.
    12. Subscription Services means the services described as the “Base Subscription” or “Add On Product” in the Mondada pricing schedule at the start of the relevantTerm.
    13. Subscription Term is defined in section 11.2 of this Agreement.
    14. Third Party Services means third party (including Jamf Software, LLC and its affiliates, and Apple Inc.) products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which the Customer may connect to or enable in conjunction with a Service.
    15. Term is defined in section 1 of this Agreement.
    16. User means any individual who uses, the Services or the Kinobi Pro Software on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
  2. SERVICES AND LICENCES
    1. Provision of Subscription Services. Upon payment of the Fees for Subscription Services, on the terms and conditions of this Agreement, and for the Subscription Term, Mondada will (a) make the Services available to the Customer; (b) provide the customer support for the Services as detailed in the applicable Documentation; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which Mondada will use commercially reasonable efforts to notify Customer in advance through the Site); and (ii) where section 12.3 (Force Majeure) applies.
    2. Services Revisions. Mondada may revise Services features and functions or the Documentation at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the Services materially reduces their features or functionality, Customer may within 30 days of notice of the revision terminate its subscription to the affected Services, without cause, or terminate this Agreement without cause if the affected Services are the only Services to which it has subscribed. If any such revision to the Services materially reduces their features or functionality, Customer may within 30 days of notice of the revision terminate its subscription to the Services.
    3. Kinobi Pro Software License. By providing the Services to the Customer, Mondada grants to the Customer and the Customer accepts, on the terms and conditions of this Agreement, the Kinobi Pro Software Licence.The Customer must pay the Subscription Fees for the Kinobi Pro Software for use during the Subscription Term. Grant of the Kinobi Pro Software Licence by Mondada does not give the Customer any rights in or over any Products. The Customer must have must have sufficient rights to use every Product, and must comply with the terms and conditions applicable to every Product. If there is a change to any licence agreement for a Product, the Customer must accept the new licence agreement before continuing to use the Kinobi Pro Software. The Installer is a Third Party Service. Mondada will use commercially reasonable efforts to maintain the Mondada Software’s compatibility with the Installer.
    4. Kinobi Pro Software Licence for Self-Hosted Services. If the Customer uses the Self-Hosted Services:
      1. Mondada permits the Customer to copy, download, install and use the Kinobi Pro Software in accordance with this Agreement;
      2. any copy of the Kinobi Pro Software made by the Customer must contain the same copyright and other proprietary notices that appear on or in the Kinobi Pro Software; and
      3. Mondada reserves the right to delete from the Customer’s systems, or otherwise disable, the Kinobi Pro Software cache if the Customer breaches this Agreement.
    5. Kinobi Pro Software – Third Party Services; Kinobi sites. The Kinobi Pro Software may rely upon or facilitate access to Third Party Services or to websites maintained by Mondada or its affiliates. Access to and use of Third Party Services or websites is governed by such Third Party Services’ or websites’ terms, conditions, disclaimers and notices. Mondada may at any time, for any reason, modify or discontinue the access to Third Party Service or the availability of any such websites.
  3. INVOICING, FEES, PAYMENT & TAXES
    1. Subscriptions. Our Software, Products and Services are billed on a subscription basis for a Subscription Term (Mondada calls these “Subscriptions”). This means that the Customer will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on the subscription package the Customer selects when purchasing a Subscription. The Subscription and Subscription Term will automatically renew at the end of each billing cycle unless the Customer cancels auto-renewal by contacting Mondada with 30 days notice. The Customer may cancel auto-renewal on the Subscription at any time, in which case the Subscription will continue until the end of that billing cycle before terminating. The Customer may cancel auto-renewal on the Subscription immediately after the Subscription starts if the Customer does not want it to renew.
    2. Fees. The Customer will pay all Fees specified in an Order or Mondada invoice. Except as otherwise specified herein, (i) fees are based on Services and subscriptions purchased and not their actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable during the Subscription Term, and (iii) additional products or services subscribed to during the Subscription Term will have annual subscription fees calculated on a pro rata basis and adjusted to met the end date of the Subscription Term; and (iv) quantities purchased cannot be decreased during the relevant Subscription Term. All Fees are invoiced and payable in United States Dollars (USD). In accordance with the Mondada payment terms, GST and or additional Tax may apply as set out in clause 3.6.
    3. Invoicing All Fees for Mondada products, services and software will be invoiced in advance and otherwise in accordance with the relevant invoice. Unless otherwise stated in an invoice, fees are due net 14 days from the invoice date.
    4. Price Changes. Mondada may change the fees charged to Customer for the Services at any time, provided that, for Products, Software and Services billed on a Subscription basis, the change will become effective only at the end of the then-current billing cycle of the Subscription Term. Mondada will provide Customer with advance notice of any change in fees.
    5. Suspension. Fees which remain unpaid at the due date of the Mondada invoice, they are considered overdue. Failure to pay fees when due may result in the applicable Subscription Service and Kinobi Pro Software being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of that Service, Product and or Software.
    6. Taxes. Our Subscription Services prices listed do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) unless otherwise indicated on a Mondada invoice. Customer is responsible for paying Taxes associated with purchases and keeping billing information up to date.
      (a) United States Sales Tax. If Mondada have a legal obligation to pay or collect sales tax for which Customer is responsible, Mondada will calculate the sales tax based upon the billing information it have about Customer and charge that amount (which, if billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless Customer provides us with a valid tax exemption certificate acceptable to the appropriate taxing authority. If Customer provides Mondada with a tax exemption certificate, Customer represents and warrants that it accurately reflects Customers tax status and that Customer will keep such document current and accurate. If Mondada subsequently determine in our sole discretion that Customers tax exemption document is valid, Mondada will refund the sales tax collected.
      (b) Non-United States Sales Tax. If applicable, Mondada will charge Customer applicable VAT, GST or any other sales, consumption or use taxes that arise in connection with Customers purchases of Mondada products unless Customer provides us with a tax identification number that entitles the Customer to an exemption, a valid tax exemption certificate or other documentary proof issued by an appropriate taxing authority that tax should not be charged. If Customer is located in a jurisdiction with multiple sales, consumption or use taxes, Mondada may charge Customer the highest prevailing rate if billing information is incomplete or inaccurate. If Customer is required by law to withhold any Taxes from payments to Mondada, Customer must provide Mondada with an official tax receipt or other appropriate documentation to support such payments or withholding.
    7. Refunds. Fees paid by Customer are non-refundable, except as provided in these Terms or when required by law. If Customer terminates or cancels a Subscription Service or Product in the middle of a billing cycle or Subscription Term, Customer will not receive a refund unless terminating these Terms for any of the following reasons: (a) Mondada has materially breached these Terms and failed to cure that breach within 30 days after Customer have so notified Mondada in writing; (b) a refund is required by law; or (c) Mondada, in our sole discretion, determine a refund is appropriate. For clarity, Mondada will not grant a refund where Customer have used our Software, Products or Services, and/or downloaded our Software, Products or Services unless the termination is due to Mondada’s material, uncured breach or a refund is required by law.
  4. CUSTOMER DATA & PRIVACY
    1. Use of Customer Data. Unless it receives Customer’s prior written consent, Mondada: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Services; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Mondada’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Mondada may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Mondada shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
    2. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services, Customer assumes such risks. Mondada offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
    3. Data Accuracy. Mondada will have no responsibility or liability for the accuracy of data uploaded to the Services by Customer, including without limitation Customer Data and any other data uploaded by Users.
    4. Data Deletion. Mondada may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
  5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS
    1. Restrictions. Customer shall not: (a) use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Services; (b) provide Services passwords or other log-in information to any third party; (c) share Services features or content with any third party; (d) access the Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas, features, functions or graphics of the Services; (e) engage in web scraping or data scraping on or related to the Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler; (f) copy, adapt, modify, translate, sub-licence or redistribute the Kinobi Pro Software or circumvent any technology or technological protective measures in the Kinobi Pro Software or otherwise conceal or remove any copyright or other proprietary notice contained in the Kinobi Pro Software; (g) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Kinobi Pro Software, except (i) where specified in a Package’s terms (e.g. specific configuration); or (ii) modifications performed in accordance with the usage guidelines contained within in the Kinobi Pro Software’s Read Me file (e.g. serial number files, file removal lists, user account creation tools); (h) attempt to re-use components of Packages to create new packages; or (i) rent, lease, sub-licence, sell, assign, transfer or otherwise deal with its rights in the Kinobi Pro Software. If it suspects any breach of the requirements of this section 5.1, including without limitation by Users, Mondada may suspend Customer’s access to the Services without advance notice, in addition to such other remedies as Mondada may have.
    2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Customer shall notify Mondada immediately of any known or suspected unauthorized use of the Services or breach of its security and shall use best efforts to stop said breach.
    3. Compliance with Laws. In its use of the Services, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
    4. Responsibility for Users. Customer is responsible and liable for: (a) Users’ use of the Services and Kinobi Pro Software including without limitation unauthorized User conduct and any User conduct that would breach the Customer’s obligations under this Agreement; and (b) any use of the Services and Kinobi Pro Software through Customer’s account, whether authorized or unauthorized.
  6. IP & FEEDBACK
    1. IP Rights. Mondada retains all right, title, and interest in and to the Services and the Kinobi Pro Software, including without limitation all software used to provide the Services and the Kinobi Pro Software and all graphics, user interfaces, logos, and trademarks reproduced through the Services and the Kinobi Pro Software. This Agreement does not grant Customer any intellectual property license or rights in or to the Services, the Kinobi Pro Software or any of their respective components. Customer recognizes that the Services and the Kinobi Pro Software and their respective components are protected by copyright and other laws.
    2. Feedback. Mondada has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Mondada, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Mondada’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of section 7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Mondada’s products or services.)
  7. CONFIDENTIAL INFORMATION Confidential Information refers to the following items Mondada discloses to Customer: (a) any document Mondada marks “Confidential”; (b) the Documentation, whether or not marked or designated confidential; and (c) any other nonpublic, sensitive information, including information Mondada discloses orally, that Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Mondada’s valuable trade secrets.
    1. Nondisclosure. Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Mondada of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Mondada prompt notice of any such legal or governmental demand and reasonably cooperate with Mondada in any effort to seek a protective order or otherwise to contest such required disclosure, at Mondada’s expense.
    2. Termination & Return. With respect to each item of Confidential Information, the obligations of section 7.1 above (Nondisclosure) will terminate 5 years after the date of disclosure; provided that such obligations related to Confidential Information constituting Mondada’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Mondada or certify, in writing, the destruction thereof.
    3. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Mondada will retain all right, title, and interest in and to all Confidential Information.
  8. REPRESENTATIONS & WARRANTIES
    1. From Mondada. Mondada represents and warrants that it is the owner of the Services and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. In the event of a breach of the warranty in this section 8.1, Mondada, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the Services; (b) replace or modify the Services to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Mondada’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this section 8.1and for potential or actual intellectual property infringement by the Services.
    2. From Customer. Customer represents and warrants that: (a) it has validly entered into this Agreement and has the legal power to do so; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Services; and (c) it is a corporation or entity authorized to do business pursuant to applicable law.
    3. Warranty Disclaimers. Except to the extent set forth in section 8.1 above, CUSTOMER ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) MONDADA HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (b) MONDADA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) MONDADA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
  9. INDEMNIFICATION
    1. By Mondada. Mondada will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Mondada in writing of, a Claim Against Customer, provided Customer (a) promptly gives Mondada written notice of the Claim Against Customer, (b) gives Mondada sole control of the defense and settlement of the Claim Against Customer (except that Mondada may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Mondada all reasonable assistance, at Mondada’s expense. If Mondada receives information about an infringement or misappropriation claim related to the Services, Mondada may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Mondada’s warranties under “Mondada Warranties” above, (ii) obtain a license for Customer’s continued use of the Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the Services upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent that (1) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Mondada, or if the Services or use thereof would not infringe without such combination; or (2) a Claim Against Customer arises from Customer’s breach of this Agreement or the Documentation.
    2. By Customer. Customer shall defend, indemnify, and hold harmless Mondada and the Mondada Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Services or Third Party Services. Mondada will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Mondada Associates” are Mondada’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
  10. LIMITATION OF LIABILITY
    1. Cap. MONDADA’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.1 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MONDADA WAS TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. MONDADA HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES.
    2. Exclusion of Consequential Damages. IN NO EVENT WILL MONDADA OR ITS AFFILIATES BE LIABLE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
    3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF MONDADA IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 10, MONDADA’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, MONDADA’S LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION 10 APPLY LIKEWISE TO MONDADA’S AFFILIATES, SUPPLIERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES.
  11. TERM & TERMINATION
    1. Term of Agreement. This Agreement commences on the date the Customer first accepts it and continues until all subscriptions hereunder, and the Subscription Term has expired or have been terminated (Term).
    2. Term of the Purchased Subscriptions and Products. The term of each subscription service and or product shall be as specified in the applicable Mondada invoice. Except unless otherwise specified in the Mondada invoice, subscriptions for any Services will automatically be for a fixed 12 month term, and will automatically renew for an additional equal period to the expiring subscription term of 12 months, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant Subscription Term. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal.
    3. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
    4. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Services and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
  12. MISCELLANEOUS
    1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
    2. Notices. Mondada may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 48 hours after they are sent. Customer may send notices pursuant to this Agreement to the contact email shown on the Site, and such notices will be deemed received 48 hours after they are sent.
    3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by internet service provider failure or delay, Third Party Services, acts undertaken by third parties (including denial of service attack), acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
    4. Assignment, Novation & Successors. Customer may not assign or novate this Agreement or any of its rights or obligations hereunder without Kinobi’s express written consent. Except to the extent forbidden in this section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns. Kinobi may assign its rights or transfer or novate its rights and obligations under this Agreement to any third party without the Customer’s prior implied or express consent (whether oral or in writing). If Kinobi gives notice to the Customer of any assignment or novation, it will take effect immediately and upon continued use of the Service. Upon assignment or novation the Customer agrees to do all things reasonably requested by Kinobi.
    5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. If a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
    6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
    7. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the laws of the State of Victoria, Australia. The parties consent to the exclusive jurisdiction of the courts of the State of Victoria, Australia for the purpose of resolving any dispute relating to this Agreement.
    8. Conflicts. In the event of any conflict between this Agreement and any Mondada policy posted online, the terms of this Agreement will govern.
    9. Technology Export. Customer shall not: (a) permit any third party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software provided by Mondada or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Services in, or export such software to, a country subject to a United States embargo.
    10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
    11. Amendment. Mondada may amend this Agreement from time to time by posting an amended version at the Site. Customer’s continued use of the Service following any such an amendment will confirm Customer’s consent thereto.

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