Legal

Terms of Service

Updated 12/17/2014
Please read these terms of service (these “Terms“) carefully as they form a contract between you and Kahuna, Inc., (“Kahuna“, “we“, “us“, or “our“) that governs your access and use of the Services.

By registering or using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization (in which event, “you” and “your” will refer to that organization) and promising to Kahuna that you have the authority to bind that organization to these Terms unless that organization has a separate written contract in effect with us (a “Kahuna Agreement”), in which event these Terms and the Kahuna Agreement (collectively the “Agreement”) will govern your use of the Service. If you or your organization is not a party to a Kahuna Agreement, than the term “Agreement” solely refers to these Terms. You may use the Services only in compliance with this Agreement and only if you have the power to form a contract with Kahuna and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning this Agreement, please contact legal@kahuna.com.

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 or is otherwise accessed by an individual (such as via email), and processed by the Service.

Customer Data” means the data collected from or concerning the characteristics and activities of individuals of your Mobile Properties or recipients of email sent via the Email Platform that is collected through use of the Tracking Code.

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

Email Platform” means a service that is provided by Kahuna that allows you to send emails to individuals.

Marketing Content” means the text of any push notifications, or any other information or content that is provided by you to Kahuna to distribute to your customers through the Service.

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

Report” means the resulting analysis provided through the Service for your Mobile Properties and/or the Email Platform.

Service” means Kahuna’s mobile and email analytics software and services for which you have subscribed, which analyzes Customer Data and generates a Report.

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

2. CHANGES TO THESE TERMS

Kahuna may revise these Terms from time to time.  Kahuna will date and post the most current version of these Terms on the Kahuna web site.  Any changes will be effective upon posting the revised version of these Terms on the Service (or such later effective date as may be indicated at the top of the revised Terms).  Kahuna may, in its sole discretion, notify you via the Service and/or by email to the email address associated with your account.  Kahuna encourages you to check the date of these Terms whenever you visit the Kahuna web site to see if these Terms have been updated.  Your continued access or use of any portion of the Service constitutes your acceptance of any such changes.  If you do not agree to any of the changes, Kahuna is not obligated to continue providing the Service, and you must immediately cancel and stop using the Service.

3. ACCOUNT

In order to use certain of the Services, 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 and/or Email Platform with which the Service will be used through your account.

4. FEES

Any subscription fee identified in the Kahuna Agreement is due at the beginning of the Initial Term and prior to any Renewal Term.  If you have not executed a Kahuna Agreement, the subscription fee is the then current fee Kahuna charges for the Service.  Unless otherwise stated, all fees are quoted in and must be paid in U.S. Dollars 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 and will pay all sales or other taxes associated with the Service 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 will pay 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 any Renewal Term.

5. SERVICE

Subject to your compliance with this Agreement, while you have a current subscription to any of the Services, you may on a limited, non-exclusive basis: (a) access and use the only those Services for which you have a current subscription, only in connection with the ordinary operation of your business, solely  in jurisdictions where your use of the Service is permitted by applicable law; (b) install, copy and use the Tracking Code solely as necessary to use the Service for your Mobile Properties; (c) use the Documentation solely for the purposes of integrating your interfaces to the Service for your Mobile Properties; and, (d) remotely access, view and download your Reports made available by Kahuna through the Service and your account.

6. RESTRICTIONS

You may use the Tracking Code and the Service solely for your own internal use. You will not (nor will you allow any third party to): (a) make the Service (or information derived therefrom) available to any third party (via, a services arrangement, service bureau, lease, sale, resale, or otherwise); (b) modify, adapt, or otherwise create derivative works of the Tracking Code or the Documentation; (c) use, copy, modify or distribute the Tracking Code for any purpose other than as expressly permitted in this Agreement; (d) circumvent any usage or access limits on the use of the Tracking Code or the Service; (e) interfere with or disrupt the Service or attempt to gain unauthorized access to any systems or networks that connect thereto or otherwise interfere with the operation of the Service; or, (f) use the Tracking Code, the Service or any information obtained therefrom in any unlawful manner or for any unlawful purpose.

7. USE OF EMAIL PLATFORM

You will not (nor will you allow any third party to): (a) use the Email Platform to send or store within the Email Platform any unlawful, infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (b) send via the Email Platform any unsolicited commercial or non-commercial communication; (c) send via the Email Platform any messages to recipients obtained through list rental, list purchase, or opt-out email append methodology; (d) interfere with or disrupt the Email Platform or other’s use of it; (e) use deceptive, misleading or unethical practices that are or might be detrimental to Kahuna; or (f) give, sell, lease, license, rent or allow others to use the Email Platform.  You will use the Email Platform to send email messages only to those recipients: (i) who have given you permission to send them such messages; or (ii) whose messages can be characterized as “transactional or relationship messages” as contemplated by the CAN-SPAM Act.  The “CAN-SPAM Act” means The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.  Kahuna may, in its sole discretion, refuse to distribute any: (1) message content that Kahuna reasonably believes violates the Agreement or is defamatory, infringing, or otherwise unlawful, or casts Kahuna in an unfavorable light; or, (2) email to any recipient that Kahuna reasonably believes has not granted permission to you (or otherwise directly “opted-in”) to send such message(s). Kahuna has no, and hereby disclaims any, obligation to review message content, recipient addresses or other data for any reason. All recipient addresses are supplied solely by you; and, Kahuna has no obligation and hereby disclaims any obligation to supply or “scrub” any message recipient list other than to process unsubscribe and opt-out requests submitted to Kahuna via the Email Platform.  You are solely responsible for the creation, initiation and sending of messages via the Email Platform, including, but not limited to, the content, recipients, and timing of such messages.

8. EMAIL FOOTER

Upon activation of your email account, as may be required by law, applicable self-regulatory principles, or with your prior written consent, Kahuna may add a default footer to each email sent via the Email Platform.  The default footer may include: (a) your physical mailing address; (b) links to your profile update and unsubscribe centers; (c) a link to your Privacy Policy.  You will cause your profile update and unsubscribe centers to report all unsubscribes to Kahuna.

9. 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 prior written permission of Kahuna.

10. PRIVACY

(a) You will, prior to using the Service, obtain any consents required by law or applicable self-regulatory principles to use the Service. You will publish, maintain and abide by a privacy policy that: (i) is consistent with your use of the information you collect from individuals using the Service, (ii) complies with applicable law and applicable self-regulatory principles, if any, and (iii) prominently and adequately discloses your collection, use and disclosure of any information you collect from individuals using the Service, including with respect to personally identifiable information (“PII”) and non-PII, collected via cookies, locally stored objects or other tracking technologies.

(b) You will not (and will not allow any third party to) use the Service to track or collect PII without properly informing individuals of your data collection, use, and disclosure practices (and only so long as such use conforms with any other of your obligations under this Agreement).

(c) Without limiting the foregoing, you will place into your privacy policy the following (or alternative, equally protective) language on all websites, properties and services deploying the Service:

Information Collected Using Cookies and Other Tracking Technologies: Notwithstanding anything else in this policy, we or a data provider we have engaged may collect web log data from you (including IP address and information about your browser or operating system), place or recognize a unique cookie on your browser to enable you to receive customized ads or content, or use other technologies such as beacons, tags and scripts.  The cookies may reflect de-identified demographic or other data linked to data you voluntarily have submitted to us, e.g., your email address, that we may share with a data provider solely in hashed, non-human readable form. To disable cookies from being set in your browser, please consult with your browser settings.”

(d) You will not do any act to render any of the above obligations and notices untrue, and will not include contradictory language in any privacy policy.  You are responsible for ensuring that no other statement in your privacy policy contradicts or nullifies any of the above statements.  You will not rely on Kahuna’s opinion or direction as a substitute for legal advice, and you will retain the responsibility for ensuring that your own conduct and policies (including your privacy policy) are sufficiently protective of your individuals’ rights.

11. 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 (a) has your consent; (b) 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 (c) provides such information in anonymous or aggregated form provided that such information is not identifiable of you.  You hereby consent to the use of your Marketing Content and/or any Customer Data in anonymized de-identified form for use by Kahuna to provide benchmarking and other services.

12. PROPRIETARY RIGHTS

The Service, including the Tracking Code, and all intellectual property rights in the Service are, and will 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.

13. SERVICE LEVEL

In addition to the other commitments set forth in this Agreement, if you and Kahuna execute a Service Level Agreement (the “Service Level Agreement”) Kahuna will provide you with the level of service as set forth in the Service Level Agreement upon your payment to Kahuna of the applicable fees for such Service Level Agreement.  Kahuna does not make any commitments concerning the availability of the Service unless you subscribe to a Service Level Agreement.  Even if you subscribe to a Service Level Agreement, Kahuna does not make any commitment that the Service will be available at all times or during any down time (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failures of your equipment, systems or local access services, (c) for previously scheduled maintenance, or (d) 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.

14. TERM AND TERMINATION

(a) Unless earlier terminated as provided in the Agreement, if you have a Kahuna Agreement currently in effect: (i) then the Agreement continues for the duration identified in the Kahuna Agreement (the “Initial Term”); (ii) unless the Kahuna Agreement expressly provides otherwise, at the end of the Initial Term, the Agreement will renew for consecutive one year periods (each a “Renewal Term”), unless either party provides the other with written notice of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or the then current Renewal Term; and, (iv) the Initial Term and any Renewal Terms are referred to as the “Term.”

(b) If you have not executed a Kahuna Agreement, then this Agreement continues so long as you use or have the right to use the Services (and the term “Term” refers to such period of time).

(c) Notwithstanding any other provision of this Agreement, Kahuna will have the right to immediately suspend your use of the Services for any actual or suspected violation of any obligations of Section 6, 7 or 18. Kahuna may terminate this Agreement if you fail to correct any breach of any term or condition of this Agreement within 30 days from notice. Upon termination or expiration of the Agreement you will cease all access and use of the Services. In the event this Agreement is terminated (or your right to use the Services is suspended or terminated) (i) you will not be entitled to any refunds of any fees, (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, and (iv) you will, within a reasonable period of time (but no more than ninety (90) days) remove all of the Tracking Code from any Mobile Properties. The following sections will survive any expiration or termination: 4, 6, the final sentence of 9, 10, 11, 12 and 14 – 19.

15. INDEMNIFICATION

You will indemnify, hold harmless and defend Kahuna from any and all claims, actions, proceedings, suits, 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: (a) your breach of any term or condition of this Agreement, (b) your use or misuse of the Service, (c) your violations of applicable laws, rules or regulations in connection with your use of the Service, including without limitation, privacy laws; or (d) the Marketing Content or the use thereof by Kahuna to provide the Service to you.

16. DISCLAIMER OF WARRANTIES

EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT (OR OTHERWISE REQUIRED BY APPLICABLE LAW WITHOUT POSSIBILITY OF CONTRACTUAL WAIVER), KAHUNA AND/OR ITS LICENSORS EXPRESSLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE, WITH RESPECT TO OR RELATING TO (I) THE SERVICE AND REPORTS PROVIDED PURSUANT TO THIS AGREEMENT AND (II) CUSTOMER DATA.  THE SERVICE, REPORTS AND CUSTOMER DATA ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND.  Kahuna does not represent or warrant that the Service will be uninterrupted or error-free, or 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.  You agree and acknowledge you have not relied on any other warranties or representations.  SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS.  IN SUCH JURISDICTIONS, THE FORGOING EXCLUSION IS LIMITED AS REQUIRED BY LAW.

17. LIMITATION OF LIABILITY

TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF SUCH DAMAGES COULD HAVE BEEN FORESEEN OR IF KAHUNA HAS BEEN APPRAISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE ARISING IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF ANY STATUTORY DUTY OR OTHERWISE, IN NO EVENT WILL KAHUNA BE LIABLE FOR (I) DAMAGES FOR LOSS OF PROFIT OR REVENUE, DATA THAT IS LOST OR CORRUPTED, LOSS OF GOODWILL, OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES SUFFERED BY YOU OR OTHERS, OR (II) ANY AMOUNT OF DAMAGES IN EXCESS OF THE FEES PAID OR PAYABLE BY YOU IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.  You acknowledge that the fees, exclusions, disclaimers and limitations of liability set forth in this Agreement are essential components of this Agreement and formed the basis for determining the price charged for the Service, and that Kahuna would not enter into this Agreement without these limitations on its liability.  These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES.  IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.

18. COMPLIANCE WITH LAWS

You will, at your own expense, comply, with all applicable laws, rules and regulations, including without limitation all privacy and data protection laws, in connection with your use of the Services and information derived therefrom (including the Reports) and the performance of your obligations under this Agreement.

19. 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.  Except pursuant to Section 2, 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.  The parties are independent contractors, and this Agreement does not create or imply any partnership, agency or joint venture.  Waivers must be signed by the waiving party and one waiver will not imply any future waiver.  Except for the payment of fees, neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to unforeseen events which occur after the Effective Date and are beyond a party’s (or its licensors’ or service provider’s) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, or natural disasters.  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 and without regard to the United Nations Convention on the International Sale of Goods.  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, as applicable, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

Open Source Licenses

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To request a copy of the original source of a third party open source package, please send a letter to: Kahuna, Inc. 811 Hamilton St. Redwood City, CA 94063.