End User License Agreement

This End User License Agreement ( “Agreement”) is between Knak Inc., a Canadian corporation having a principal place of business at 2 Gurdwara Road, Suite 200, Nepean, ON, K2E 1A2 (“Knak”, “We”, or “our”) and yourself, the End User (the “End User”, “You”, or “Your”).

Knak operates a SaaS service for creating emails and landing pages and other materials for use with any marketing automation or sending platform (“Service”). Prior to gaining access to the Service You are required to either accept or reject this Agreement. By clicking on the “I accept” button at the bottom of this Agreement you will indicate your agreement to be bound by this Agreement. If you choose not to, or You click “I reject”, You will not be able to gain access to the Service.

Use of the Service

• You must provide accurate and complete registration information any time You register to use the Service.
• Your use of the Service must comply with all applicable laws, regulations and ordinances.
• You agree to not engage in any activity that actually or potentially interferes with or disrupts the Service.
• You may not allow multiple people to use the same account or otherwise access the Service in a manner intended to avoid incurring fees.
• You may not use the Service if You are a person barred from receiving the Service under the laws of Canada, the United States or other countries, including the country in which You are resident or from which You use the Service.

Privacy

The Service is subject to the privacy policy for the Service available at https://www.knak.io/privacy-policy/ (the “Privacy Policy”), which is hereby expressly incorporated into this Agreement by reference and agreed to by You. You consent to the use of Your data by Knak in accordance with Knak's Privacy Policy and compliance with applicable privacy and data protection laws.

Fees for Use of the Service

• The Service may be provided to You for evaluation without charge subject to certain limits or for a certain “trial” period of time. Such use is also governed by this Agreement.
• Usage over this limit (or after the “trial” period) requires the purchase of the Services for a fee.

Cancellation and Termination

• The duration of the subscription period during which You and the legal entity which employs You or has engaged You (i.e. “Knak’s Customer”) is set forth in a Master Services Agreement between Knak and the Knak Customer, and also includes certain contract termination and renewal provisions.

Ideas and Feedback

You may choose to or we may invite You to submit comments or ideas about the Service, including but not limited to ideas about improving the Service or our products (“Ideas”). By submitting any Idea, You agree that Your disclosure is unsolicited and without restriction and will not place Knak under any fiduciary or other obligation, and that we are free to use the Ideas and all associated intellectual property rights without any additional compensation to You, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.

Confidentiality

Either party may disclose proprietary and other confidential information to each other in connection with this Agreement. As used herein, “Confidential Information” means information belonging to one of the parties that is of value to such party and the disclosure of which could result in a competitive or other disadvantage to such party. Confidential Information includes, without limitation, financial information, proposals and presentations, pricing, discounts, security, data and privacy information, patents, inventions, copyright, trade secrets, know-how; designs, processes or formulae, software code, market or sales information or plans; information regarding end users, suppliers and licensors, business plans, prospects and opportunities. Confidential Information excludes information that (i) is or becomes publicly known through lawful means; (ii) is disclosed to the other party without a confidential restriction by a third party who rightfully possesses the information and did not obtain it, either directly or indirectly, from one of the parties, as the case may be, or any of their respective principals, employees, affiliated persons, or affiliated entities. The parties both understand and agree that Confidential Information shall be kept confidential by the other at all times. Each party agrees to use a reasonable degree of care in protecting Confidential Information disclosed to it in connection with this Agreement. The parties further agree that they will not, without the prior written approval by the other party, disclose such Confidential Information, or use such Confidential Information in any way, either during the duration of the applicable subscription period or at any time thereafter, except as required in connection with this Agreement, as consented to in writing beforehand by the other party, or as required by law.

Modification of the Service

You acknowledge and agree that the Service may change from time to time without prior notice to You provided that the change does not materially affect the conduct of the Knak Customer’s business. Changes include changes to security patches, added or removed functionality, and other enhancements or restrictions.

Knak shall not be liable to You, the Knak Customer or to any third party for any modification, suspension or discontinuance of the Service.

External Resources

The Service may include hyperlinks to other web sites or content or resources or email content. You acknowledge and agree that Knak is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

Inspiration Center

Knak’s Inspiration Center comprises email templates which have either been submitted by users, were provided to Knak through subscription or selected by Knak (“IC Content”). Knak does not condone, support, represent or guarantee the truthfulness, accuracy, completeness or reliability of any IC Content posted to the Inspiration Center. You agree that Knak will not be liable in any way for any IC Content, including, but not limited to, any errors or omissions therein, or any loss or damage of any kind incurred as a result of the use thereof.

The owners of the templates retain ownership in the templates and their content at all times.

Users who post templates to the Inspiration Center hereby grant Knak a non-exclusive, worldwide, transferable, royalty-free, fully-paid up and sub licensable right to use, copy, modify, distribute, publish, and process, the templates and their content. You agree that you will not post any templates or content in violation of any law, or the rights of any third party.

Knak reserves the right to remove any content, including IC Content, from its app and site that allegedly infringes another person’s copyright. Knak is registered in the United States Copyright Office in accordance with the Digital Millennium Copyright Act (the “Act”) and is committed to observing the protections of the Act.

Notices to Knak regarding any alleged copyright infringement should be sent by email to legal@knak.com

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:

A description of the copyrighted work that you claim has been infringed;

Your name, address, telephone number, and email address;

A description of the location on Knak’s website where the allegedly infringing content was posted;

A good faith statement that you believe the use of the content infringes your copyright and is not a fair use;

A statement certifying that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and

Your electronic or physical signature.

License from Knak and Restrictions

The paragraphs under this section do not apply to IC Content.

Knak’s Customer shall own and will continue to own at all times all intellectual property rights in its business data. Knak owns all intellectual property rights in the Service. All of the content available on or through the Service, including without limitation, text, photographs, graphics, logos, trade/service marks, and/or audiovisual content, is owned and/or controlled by Knak., or other licensors and is protected, as applicable, by copyright, trademark, trade dress, patent, invention and trade secret laws, other proprietary rights, and international treaties. You acknowledge that the Service and any underlying technology or software used in connection with the Service contain our proprietary information, that Knak maintains ownership thereof at all time, and that you obtain no ownership rights therein, except for this end user license provided by this Agreement to use the Services as described herein, in return for the applicable fee paid by Knak’s Customer.

Subject to and conditioned upon Your compliance with this Agreement, we grant to You and Knak’s Customer a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the access to the software provided to You by Knak, if any, as part of the Service as provided to You by Knak. This license is for the sole purpose of enabling You and the Knak Customer to use and enjoy the benefit of the Service as provided by Knak, in the manner strictly permitted by this Agreement.

Subject to and conditioned upon Your and Knak’s Customer’s compliance with this Agreement, templates which Knak’s Customer and You and Knak’s Customer’s other employees, contractors and agents create using the Service will be owned by Knak’s Customer, perpetually.

You may not (and You may not permit anyone else to): (a) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Service and underlying software, or any part thereof, unless this is expressly permitted or required by law, or unless You have been specifically told that You may do so by Knak., in writing (e.g., through an open source software license); or (b) attempt to disable or circumvent any security mechanisms used by the Service.

Open source software licenses for components of the Service released under an open source license constitute separate written agreements. To the limited extent that the open source software licenses expressly supersede this Agreement, the open source licenses govern Your agreement with Knak for the use of the components of the Service released under an open source license.

Restrictions

You may not use the Service in any manner that could damage, disable, overburden or impair our servers or networks, or interfere with any other users’ use or enjoyment of the Service.

You may not attempt to gain unauthorized access to the Service, member accounts, or computer systems or networks, through hacking, password mining or any other means. Without limiting anything else contained herein, You agree that You shall not (and You agree not to allow any third party to):

• remove any notices of copyright, trademark or other intellectual property or proprietary rights contained in/on or accessible through the Service or in any content or other material obtained via the Service;
• use any robot, spider, website search/retrieval application, or other automated device, process or means to access, retrieve or index any portion of the Service;
• reformat or frame any portion of the web pages that are part of the Service;
• use the Service for commercial purposes not permitted under this Agreement;
• create user accounts by automated means or under false or fraudulent pretenses;
• attempt to defeat any security or verification measure relating to the Service;
• provide or use tracking or monitoring functionality in connection with the Service, including, without limitation, to identify other users’ actions or activities;
• impersonate or attempt to impersonate Knak or any employee, contractor or associate of Knak, or any other person or entity; or
• collect or store personal data about other users in connection with the prohibited activities described in this paragraph.

Links to Other Websites

The Service may contain advertisements and/or links to other websites (“Third Party Sites”). Knak does not endorse, sanction or verify the accuracy or ownership of the information contained in/on any Third Party Site or any products or services advertised on Third Party Sites. If You decide to leave the Site and navigate to Third Party Sites, or install any software or download content from any such Third Party Sites, You do so at Your own risk. Once You access a Third Party Site through a link on our Site, You may no longer be protected by this Agreement and You may be subject to the terms and conditions of such Third Party Site. You should review the applicable policies, including privacy and data gathering practices, of any Third Party Site to which You navigate from the Site, or relating to any software You use or install from a Third Party Site. Concerns regarding a Third Party Site should be directed to the Third Party Site itself. Knak bears no responsibility for any action associated with any Third Party Site.

Security Practices

Knak undertakes to maintain appropriate technical and organizational security measures in accordance with applicable law and best industry practice in providing the Services. Knak will implement and maintain an information security program that includes administration, technical and physical safeguards designed to protect the security and integrity of customer content, prevent unauthorized access to, or disclosure of customer content and protect against threats, hazards and security incidents with respect to customer content.

You will have access to customer content and are responsible for all changes to and/or deletions of customer content and the security of all passwords and other usernames and passwords required in order to access the Services.

Express Warranties, Disclaimer of Warranties

Knak expressly warrants that: (1) it owns or controls the Service, the content available on or through the Service, and the software that is part of the Service; and (2) it has the authority to grant You and Knak’s Customer the license rights conveyed herein.

IF YOU ACCESS THE SERVICE, YOU DO SO AT YOUR OWN RISK. WE PROVIDE THE SERVICE “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE.” WE MAKE NO IMPLIED REPRESENTATIONS, CONDITIONS, WARRANTIES OR GUARANTEES ABOUT THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL STATUTORY WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES THAT THE SERVICE IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, OR FIT FOR A PARTICULAR PURPOSE OR NEED. WE DO NOT GUARANTEE THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE EFFECTIVE, RELIABLE OR ACCURATE OR WILL MEET YOUR REQUIREMENTS. WE DO NOT GUARANTEE THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE (EITHER DIRECTLY OR THROUGH THIRD-PARTY NETWORKS) AT TIMES OR LOCATIONS OF YOUR CHOOSING. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF INFORMATION PROVIDED BY ANY OTHER USERS OF THE SERVICE OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICE. KNAK DOES NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR-FREE, THAT ERRORS IN THE SERVICE WILL BE FIXED, THAT LOSS OF DATA WILL NOT OCCUR, OR THAT THE SERVICE OR SOFTWARE ARE FREE OF COMPUTER VIRUSES, CONTAMINANTS OR OTHER HARMFUL ITEMS. UNDER NO CIRCUMSTANCES WILL KNAK, ANY OF OUR AFFILIATES, DISTRIBUTORS, PARTNERS, LICENSORS, AND/OR ANY OF OUR, OR THEIR, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS, OR OTHER REPRESENTATIVES, BE LIABLE FOR ANY DIRECT OR INDIRECT LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SERVICE.

Limitations on Liability

IN NO EVENT SHALL OUR TOTAL AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS, LOSSES, DAMAGES, SUITS JUDGMENTS, LITIGATION COSTS AND ATTORNEYS’ FEES (“CLAIMS”) RELATING TO OR ARISING OUT OF YOUR USE OF THE SERVICE, REGARDLESS OF THE FORM OF ACTION, AND THE NUMBER OF CLAIMS, EXCEED CAD $500.00 . EXCEPT FOR BREACHES BY YOU IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES IN CONNECTION WITH THE SERVICE. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL OR BUSINESS REPUTATION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WORK STOPPAGE, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF THE PARTY WHO IS LIABLE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME PROVINCES, STATES, COUNTRIES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

Indemnification

You agree to defend, hold harmless and indemnify Knak, and its subsidiaries, affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners from and against any third party claim arising from or in any way related to (a) Your breach of this Agreement, (b) Your use of the Service other than as contemplated herein, or (c) Your violation of applicable laws, rules or regulations in connection with the Service. As a condition to any right to indemnification under this Agreement, the indemnified party must (a) promptly give the indemnifying party written notice of the claim or proceeding (provided that the failure of the party to provide prompt written notice of any such claim shall not relieve the other party from its indemnification obligations hereunder unless the other party is materially prejudiced thereby), (b) give the indemnifying party sole control of the defense and settlement of the claim or proceeding (except that the indemnifying party may not settle any claim or proceeding unless it unconditionally releases the indemnified party of all liability), and (c) give the indemnifying party all reasonable assistance, at the indemnifying party’s expense.

Choice of Law and Dispute Resolution

This Agreement shall be deemed to have been entered into and shall be construed and enforced in accordance with the laws of the Province of Ontario as applied to contracts made and performed entirely within Ontario, without giving effect to any conflicts of laws’ statutes. Any controversy, dispute or claim arising out of or related to this Agreement shall be settled by final and binding arbitration to be conducted by an arbitration tribunal in the Province of Ontario, pursuant to the Arbitration Act (Ontario). Any and all disputes that You may have with Knak shall be resolved individually, without resort to any form of class action.

General Legal Terms

This Agreement, including the Privacy Policy, constitute the whole legal agreement between You and Knak and govern Your use of the Service and completely replace any prior agreements between You and Knak in relation to the Service.

If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of either party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

Neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

You may not assign or otherwise transfer this Agreement without Knak’s prior written consent.

Knak may revise this Agreement at any time without notice. By using the Service you agree to be bound by the then current version of this Agreement.