The terms and conditions under which Partner licenses Kontakt.io Products to End Users will be no less restrictive nor more favorable than the following terms. All capitalized terms used herein are as defined in the Agreement between Partner and Kontakt.io:
1. End User License.
End User must digitally sign, accept or otherwise legally rectify the Kontakt.io End User License Agreement as may be updated from time to time, in order to gain access, use and utilize from the Kontakt.io software Products.
2. Ownership; Restrictions on Use.
(a) Ownership. Any Software licensed hereunder including software that is embedded into Hardware products, shall be in object code form only, all subject to the following terms and conditions during the term of this End User License. This End User License confers no title or ownership and is not a sale of any rights in the Products. All rights not expressly granted to End User are reserved solely to Kontakt.io and/or its licensors. Nothing herein should be construed as granting End User, by implication, estoppel or otherwise, a license relating to the Products other than as expressly stated in this End User License.
(b) Restrictions. End User agrees that it will not (i) reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Products, (ii) modify the Products, (iii) otherwise translate or use the Products except as specifically allowed by this End User License, or allow any person or entity (whether with or without consideration) the right to do any of the foregoing; (iv) sublicense, transfer and/or assign the Products to any third party, whether with or without consideration; (v) render any services to third parties using the Products; (vi) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Products; or (vii) allow any third parties to use the Products. End User may not make any copies of the Products or any portions thereof.
3. Proprietary Rights, Products and Derivative Works.
Kontakt.io (or its licensors, as applicable) will retain all title to and ownership of the Products (and Third Party Software or Hardware), all related concepts, technical know-how, and all modifications, customizations, revisions, bug fixes, enhancements, improvements and derivative works (collectively, the “Derivative Works”) thereof developed by Kontakt.io or anyone else, including all Intellectual Property Rights (as defined below) and, except for the expressed limited license granted hereunder, End User shall have no rights in or claims with respect thereto. "Intellectual Property Rights" means any patent, patent applications, trade secret, trademark, copyright, industrial design or any other intellectual property right registered or unregistered in any country throughout the world, and all related goodwill. To the extent it shall be determined that End User has any right in connection with the Products other than the limited specific license hereunder, End User hereby irrevocably: (i) assign to Kontakt.io, whenever and in perpetuity, any right, title and interest, whether now existing or later arising, that End User may have in or to the Products and/or related Intellectual Property Rights; and (ii) agree to take any lawful action, which Kontakt.io reasonably requests to vest or protect End User’s right, title and interest in the Products and any Derivative Works (at End User’s sole cost).
4. Limited Warranty, Limitation of Liability and Indemnification.
(a) Warranty.
Partner represents and warrants to End User that during the term of this End User License (the “Warranty Period”), the Products shall substantially conform to the applicable Documentation. Unless otherwise mutually agreed between the parties in writing, the warranty period for each Hardware Product shall be twelve (12) months from the date such Product is shipped from Kontakt.io’s facility or the date title to such Product passes to the End User, whichever date is earlier (such period referred to herein as the “Warranty Period”). Kontakt.io reserves the right to change a warranty period for a specific Product; provided that only purchase orders placed after the effective date of such change shall be affected. Kontakt.io warrants that, for the Warranty Period: (1) all components of such Product, except software components, shall be free from faulty workmanship and defective materials; and (2) all software components of such Product shall substantially conform to the written documentation designated by Kontakt.io for use with such software components. The warranties provided by Kontakt.io in this Section are the only warranties provided by Kontakt.io with respect to the Products, and may be modified only by a written instrument signed by Kontakt.io and accepted by the End User.
(b) Limitations on Warranty.
The foregoing warranty does not apply to any defects, damages, failures or malfunctions to all or any part of the products resulting from: (i) negligence, abuse, or misapplication of the products; (ii) use of the products other than as specified in the applicable documentation or otherwise in other than its normal and customary manner; (iii) any alterations, modifications or adaptations of the products performed by anyone other than kontakt.io or partner; (iv) any unauthorized combination or interfacing of the products with other hardware or software; (iv) any act of god, accident, fire or other hazard; or (v) other causes beyond the reasonable control of partner. Except as expressly set forth in this end user license, partner disclaims any and all promises, representations, and warranties with respect to the products, including condition, quality, conformity to any representation or description, the existence of any latent or patent defects, any negligence, and merchantability or fitness for a particular use.
End User’s sole and exclusive remedy for breach of the warranties set forth in this Section shall be that Partner, at Partner's sole discretion, will either: (i) repair, replace or provide a reasonable workaround for the defective and/or non-conforming portion of the Products within thirty (30) days after receiving written notice of the breach of the warranty which describes in detail the specific nature of the defect and/or non-conformity: or (ii) refund all amounts paid by End User for such Products (after deducting amounts paid for actual use of the Products by End User). To claim the benefit of this warranty, End User must give Partner written notice of any breach of the warranty (as aforesaid) within the Warranty Period.
5. Third Party Beneficiary;
No Indirect Warranty, Indemnification or Liability. The parties acknowledge that Kontakt.io (as a licensor of Partner) and its third-party licensors are third party beneficiaries of this End User License, entitled to enforce their respective provisions on behalf of Partner. Notwithstanding the foregoing, Kontakt.io shall provide no warranty or indemnification to End User and shall have no liability to End User under this End User License.
