Legal

Terms of Service

Updated 01/23/2018

The following terms and conditions govern the use of the Kahuna Service.

1. DEFINITIONS.

“Action Tracked” is the unit of measurement for usage of the Service.  An Action Tracked occurs when the Tracking Code is executed on your Mobile Properties, accessed by a user, and processed by the Service.

“Customer Data” means the data concerning the characteristics and activities of users of your Mobile Properties that is collected through use of the Tracking Code and analyzed through the Service.

“Documentation” means any accompanying documentation made available to you by Kahuna for use with the Service, including any API documentation.

“Mobile Properties” means your mobile applications and/or mobile web sites.

“Report” means the resulting analysis provided through the Service for your Mobile Properties.

“Service” means Kahuna’s proprietary mobile analytics software and services, which analyzes Customer Data and generates a Report.

“Tracking Code” means the tracking code or API, which is installed on your Mobile Property for the purpose of collecting Customer Data.

2. ACCOUNT.  You must complete the registration process by providing Kahuna with current, complete and accurate information as prompted by the registration form, including your e-mail address (username) and password in order to use the Service.  You are responsible for safeguarding the confidentiality of your password(s) and user name(s), and for any use or misuse of your account resulting from any third party using a password or user name.  By creating an account, you represent and warrant that you are the legal owner (or an authorized employee or agent) of the Mobile Property for which the Service will be provided through your account.

3. FEES.  The subscription fee is due at the beginning of each term.  Unless otherwise stated, all fees are quoted in U.S. Dollars and are due and payable on a term basis within 30 days from receipt of invoice. Late payments will bear interest at 1.5% per month or the maximum rate permitted by law, whichever is less calculated from the date such amount was due until the date that payment is received.  You are responsible for all sales or other taxes associated with the Services other than U.S. taxes based on Kahuna’s net income.  Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and you are responsible for any collection expenses (including attorneys’ fees) incurred by Kahuna.  Kahuna may change its fees and payment policies for the Service including the addition of costs for certain services, or other fees charged to Kahuna or its licensors by 3rd party vendors for the inclusion of data in the Reports, at any time prior to the renewal of your initial term (or any renewal term). Kahuna has the right to review the number of triggered campaigns and number of event optimizations on a monthly basis. If Kahuna’s costs to support triggered campaigns and event optimizations are deemed excessive, then both parties will negotiate in good faith an additional agreed upon fee. The changes to the fees or payment policies will be effective upon the renewal of the term, which you will be informed of through your account.

4. LICENSE.  Subject to your compliance with the terms and conditions of this Agreement, Kahuna hereby grants you a limited, revocable, non-exclusive, non-sublicensable license to (i) install, copy and use the Tracking Code solely as necessary to use the Service for your Mobile Properties, and (ii) use the Documentation to solely for the purposes of developing, implementing and integrating interfaces to the Service for your Mobile Properties.  Subject to the terms and conditions of this Agreement, you may remotely access, view and download your Reports made available by Kahuna through the Service and your account.

5. RESTRICTIONS.  You may use the Tracking Code and the Service solely for your own internal use, and may not make the Service available to any third party.  You will not nor will you allow any third party to (i) modify, adapt, or otherwise create derivative works of the Tracking Code or the Documentation; (ii) use, copy, modify or distribute the Tracking Code for any purpose other than as expressly permitted herein; (iii) circumvent any usage or access limits on use of the Tracking Code or the Service; (iv) interfere with or disrupt the Service or attempt to gain access to any systems or networks that connect thereto or which interferes with the operation of the Service (except as required to access and use the Service); or (v) use the Tracking Code in any unlawful manner or for any unlawful purpose.  You will comply with all applicable laws and regulations in your use of the Service and the Tracking Code.

6. REPORTS.  The Reports are for your internal use only.  You may share the Reports with your third party service providers for analysis and for monetizing your Mobile Properties, e.g., through ad networks to sell advertising, subject to confidentiality obligations that require the third party service provider not to publicly disclose the information in the Reports.  You may not otherwise sell, rent, disclose or make the Reports publicly available without the permission of Kahuna.

7. PRIVACY.  You agree to publish and abide by an appropriate privacy policy that adequately describes the collection, use and sharing of any information you collect from users of your Mobile Properties using the Service.  You further agree to comply with all applicable laws relating to your collection, use and sharing of the information you collect from users of your Mobile Properties using the Service.  You will not (and will not allow any third party to) use the Service to track or collect personally identifiable information of users without properly informing your users of your specific data collection practices.

8. INFORMATION RIGHTS.  Kahuna may retain and use, subject to the terms of its Privacy Policy, information collected in your use of the Service. Kahuna will not share information associated with you or your Mobile Properties with any third parties unless Kahuna (i) has your consent; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of Kahuna, its users or the public; or (iii) provides such information in anonymous or aggregated form provided that such information is not identifiable of you.

9. PROPRIETARY RIGHTS.  The Service, including the Tracking Code, and all intellectual property rights in the Service are, and shall remain, the property of Kahuna.  All rights not expressly granted to you in this Agreement are hereby expressly reserved and retained by Kahuna and its licensors.

10. SERVICE LEVEL.  Kahuna does not guarantee the Service will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond Kahuna’s (or its licensors’ or service provider’s) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Kahuna or its servers are located or co-located.

11. TERMINATION.  You may terminate your use of the Service at any time and for any reason.  Kahuna may suspend your access to the Service or terminate this Agreement if you fail to correct any breach of any term or condition of this Agreement within 30 days from notice.  Prior to terminating this Agreement, you will cease to send data to the Kahuna Service.  Upon any termination of this Agreement, Kahuna will cease providing the Service and will cease any further access or use of the Service.  In the event of any termination (i) you will not be entitled to any refunds of any fees, and (ii) any outstanding balance for Service rendered through the date of termination, and any other unpaid payment obligations for the remainder of your subscription term will be immediately due and payable in full (unless termination is due to a problem with the functioning of Service or a breach of contract by Kahuna) (iii) all of your historical report data will no longer be available to you unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination. The following sections will survive any termination: 3, 5, 6, 8, 9, and 11-15.

12. INDEMNIFICATION.  You agree to indemnify, hold harmless and defend Kahuna from any and all third-party claims, actions, proceedings, and suits brought against Kahuna or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by Kahuna arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your unauthorized use of the Service, or (iii) your violations of applicable laws, rules or regulations in connection with your use of the Service or your Mobile Properties. In such a case, Kahuna will provide you with written notice of such claim, suit or action within a reasonable period time after receiving such information.

13. DISCLAIMER OF WARRANTIES.  The Service and Reports are provided “AS IS” and on an “AS AVAILABLE” basis without warranty or condition of any kind.  THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY KAHUNA AND/OR ITS LICENSORS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.  Kahuna does not represent or warrant that the Service will be uninterrupted or error-free, that all defects will be corrected.  Kahuna does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable.  You specifically agree that Kahuna will not be responsible for unauthorized access to or alteration of the Customer Data or data from your Mobile Properties.  The foregoing exclusions and disclaimers are an essential part of this agreement and formed the basis for determining the price charged for the service.

14. LIMITATION OF LIABILITY.  KAHUNA WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF KAHUNA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The exclusion contained in this paragraph shall apply regardless of the failure of the exclusive remedy provided in the following paragraph.  Kahuna’s total cumulative liability for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the amount paid by you in the 12 months preceding the claim.

15. GENERAL.  This Agreement constitutes the entire agreement among the parties with respect to the subject matter and supersedes and merges all prior proposals, understandings and contemporaneous communications.  This Agreement may not be modified except by written agreement of both parties.  You may not assign any of the rights or obligations granted hereunder, except with the express written consent of Kahuna, and any attempted assignment in violation of this paragraph is void.  This Agreement does not create or imply any partnership, agency or joint venture.  This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles.  All claims arising out of or relating to this Agreement will be brought exclusively in the federal or state courts of Santa Clara County, California, USA, and you consent to personal jurisdiction in those courts.  If any part of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.  This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

Addendum A

KAHUNA SERVICE LEVEL AGREEMENT

 

In the event Kahuna does not meet the Uptime Percentage, Customer will be eligible, as its sole and exclusive remedy for such failure, to receive service credits (“Service Credits”) as described below.

Definitions:

“Outage” means a period of time during which the Customer in unable to access material portions of the Production Services necessary to schedule or send messages (if Customer has a current subscription to use the Email Platform) or to obtain a Report, excluding any unavailability: (i) that occurs during any Scheduled Downtime; (ii) that is caused by problems beyond the reasonable control of Kahuna, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, denial of  service attacks, failure of the Internet generally, or other failures; or (iii) any misuse or action of the Production Services by Customer.

“Service Month” means each calendar Month during the Subscription Period and any Renewal Term.

“Scheduled Available Time” means the total number of minutes in the calendar Month minus Schedule Downtime (if any).

“Scheduled Downtime” means pre-announced periods (which Kahuna will announce at least twenty-four (24) hours in advance via the Services) when the Production Services are unavailable for maintenance and upgrades (which such periods will take place only between 12:00am and 6:00am Pacific time).

“Unavailable Time” means the cumulative number of minutes arising from each Outage that is greater than ten minutes and that occurs within the Scheduled Available Time.

“Uptime Percentage” means, for a particular Service Month, the number that is calculated as follows:

Scheduled Available Time – Unavailable Time)/ Scheduled Available Time

Calculation of Service Credits:

If, in a particular Service Month, the Uptime Percentage does not meet or exceed 99%, then Customer is eligible to receive, as its sole and exclusive remedy, a service credit (“Service Credit”) calculated by the following formula:

Service Credit for that Service Month =  (1 – Uptime Percentage (expressed as a decimal)) x  the fixed Monthly Production Services Fee for that Service Month.

In the event the Customer pays an Annual Fee, the fixed Monthly Production Services fee for the affected Service Month will be calculated by dividing the Annual Fee by twelve (12).

By way of example only, if the fixed Monthly Production Services Fee is $10,000 and the actual Uptime Percentage in that Service Month is 98.00% then Customer is entitled to a credit of $200 calculated as follows: [(1- 0.98) times $10,000].

General:

Customer is not eligible to receive any Service Credits if it has any outstanding past due amounts during the Service Month in which the Service Credit accrues.  Kahuna will issue Service Credits, as determined in its sole discretion, either on future billing cycles or as a refund against Fees paid.   In no event will the Service Credits for any particular Month exceed the fixed Monthly Fees payable by Customer for such Month.  In order to receive any Service Credit, Customer must notify Kahuna within (10) business days after the end of the Service Month during which such Credit accrued.  Failure to comply with this requirement will forfeit Customer’s right to receive a Service Credit.

Requests for credits may be sent via email to Kahuna at: success@usekahuna.com