Terms of Service

Knak. Inc. ("Knak.") operates a Software as a Service platform for creating emails and landing pages for use with supported marketing automation or sending platforms ("Service"), which we hope You (the "Customer", "You", or "Your") use. If You use it, please use it responsibly and in accordance with these Terms of Service. If You don't, we'll have the right to terminate Your account.

These Terms of Service (the "Terms"), and our prices can change at any time. We'll try to warn you about major changes to the Terms, but we make no guarantees.

That's the basic idea, but you must read through the entire Terms and agree with all the details before you use the Services (whether or not You have created an account).

Your Agreement with Knak.

Your use of the Knak Service is governed by these Terms and any order form subscribing for the Service that you enter into in writing with us (“Order” , and together with these Terms the “Agreement”).

In order to use the Service, You must first agree to the Terms. You will typically also be required to enter into an Order with us, which will set out details of your subscription, the fees payable by you for use of the Service, and other commercial terms. You understand and agree that Knak will treat Your use of the Service as acceptance of the Terms from that point onwards whether or not You sign an Order or similar document expressly referencing these Terms.

As previously mentioned Knak may make changes to the Terms from time to time. You may reject the changes by terminating Your account. You understand and agree that if You use the Service after the date on which Knak notifies you that the Terms have changed, Knak will treat Your use as acceptance of the updated Terms.

If you have any question about the Terms, please contact us at support@knak.com.

Your Account

• 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.
• You may not use the service unless you are over the age of majority in the country in which You use the Service.
• Account(s) created by automated methods are not permitted.

Use of the Service

• You must provide accurate and complete registration information any time You register to use the Service.
• You are responsible for the security of Your passwords and for any use of Your account.
• 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.
• Knak reserves the right to enforce quotas and usage limits (to any resources, including the API) at its sole discretion, with or without notice, which may result in Knak disabling or throttling Your usage of the Service for any amount of time.
• You may not allow multiple people to use the same account or otherwise access the Service in a manner intended to avoid incurring fees.

Image Hosting Limits

Depending on what platform You have contracted for with Knak, Knak agrees to pay for any costs associated with hosting images you may upload and use in your emails up to a certain threshold. These limits will be determined based on image data for emails opened by Your clients in an aggregate. The thresholds, based on platform type, are as follows:

If you exceed Your platform type threshold, Knak will charge You an extra $150 for every terabyte used over the threshold. Thresholds will be calculated on an annual basis.

Service Policies and Privacy

The Service shall be subject to the privacy policy for the Service available at https://knak.com/privacy-policy/ (the "Privacy Policy"), which is hereby expressly incorporated into the Terms of Service by reference. You agree to the use of Your data in accordance with Knak's Privacy Policy.

Fees for Use of the Service

Fees for use of the Service will be set out in the applicable Order.

• Payments for the use of the Services are non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account.
• Fees are solely based on Knak's measurements of Your use of the Service, unless otherwise agreed to in writing. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties.
• You acknowledge and agree that any credit card and related billing and payment information that You provide to Knak may be shared by Knak with companies who work on Knak's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Knak. and servicing Your account.
• Knak. may change its fees and payment policies for the Service by notifying You at least thirty (30) days before the beginning of the billing cycle in which such change will take effect.

Cancellation and Termination

• You must cancel Your account via support request by contacting billing@knak.com using your account email.
• You will not receive any refunds if You cancel Your account.
• If You cancel the Service before the end of Your subscription term (as specified in an Order) for any reason the remaining fees for the balance of the subscription period will be immediately due and payable, and unless payment in full is received by Knak your termination will be unenforceable.
• You agree that Knak may terminate or suspend Your account on 10 days' written notice for non-payment or breach of this Agreement and immediately on written notice for breach of your obligations in respect of Knak's confidential information, misappropriation of its intellectual property or harm to its reputation. You agree that Knak will not be liable to You or any third party for such termination. In such case you will also not be charged for any unpaid fees, and You will not receive any refunds.
• You agree that Knak may decline to renew your subscription to the Service at any time prior to the renewal date, notwithstanding any provision to the contrary in any Order.

Ideas and Feedback

You may choose to submit suggestions, 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 Idea 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 that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure . 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 customers, 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.

Changes include, without limitation, changes to fee and payment policies, security patches, added or removed functionality, and other enhancements or restrictions.

Knak shall not be liable to you or to any third party for any modification, price change, 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.

License from Knak and Restrictions

The Service and 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 is subject to our proprietary rights, that Knak maintains ownership thereof at all time, and that you obtain no ownership rights therein, except for the limited right and license provided by this Agreement to use the Services as described herein, in return for payment of the applicable fee

Subject to and conditioned upon Your compliance with this Agreement, we grant to you a, worldwide, royalty-free, non- assignable and non-exclusive license for your internal business purposes 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 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 compliance with this Agreement, as between You and Knak, templates which You and your employees, contractors and agents create using the Service will be owned by You, 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.

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 any of 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 leading industry practice in providing the Services. Knak will endeavour to see to it that such anti-virus software or programs are: (a) regularly updated, actively running, and capable of generating audit logs; (b) deployed on all systems commonly affected by viruses; and (c) deployed on all systems used to access or store business data. Knak regularly utilizes secure software development practices throughout the development lifecycle, including but not limited to security requirements definition, security architecture design, security code reviews, and penetration testing.

Disclaimer of Warranties

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 EXPRESS OR IMPLIED REPRESENTATIONS, CONDITIONS, WARRANTIES OR GUARANTEES ABOUT THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM SAME, INCLUDING WITHOUT LIMITATION, ALL STATUTORY WARRANTIES WITH RESPECT TO THE SERVICE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES THAT THE SERVICE IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. 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. EXCEPT AS EXPRESSLY SET FORTH HEREIN, KNAK MAKES NO WARRANTIES ABOUT THE INFORMATION SYSTEMS, SOFTWARE AND FUNCTIONS MADE ACCESSIBLE BY OR THROUGH THE SERVICE OR ANY SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION. 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

YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US IS THE CANCELLATION OF YOUR ACCOUNT. IN NO EVENT SHALL OUR TOTAL CUMULATIVE 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, EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID TO UTILIZE THE SERVICE IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM OR (B) ONE HUNDRED DOLLARS ($100). IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR ANY BODILY INJURY, EMOTIONAL DISTRESS, DEATH OR ANY OTHER DAMAGES ARISING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE, WHETHER ON-LINE OR OFF-LINE, OR OTHERWISE 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, COMPUTER FAILURE OR MALFUNCTION, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR ANY PERSONAL INJURY OR PROPERTY DAMAGES, EVEN IF WE 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 data or any of your materials processed through the Service infringing upon any proprietary or other right of any third party, or (b) Your violation of applicable laws, rules or regulations in connection with the Service, including without limitation, any liability or expense arising from all Claims. In such a case, Knak. will provide You with written notice of such Claim.

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 Knak to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.

You agree that if Knak does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Knak has the benefit of under any applicable law), this will not be taken to be a formal waiver of Knak's rights and that those rights or remedies will still be available to Knak.

Knak shall not 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.

We may assign this contract at any time to any parent, subsidiary, or any affiliated company, or as part of the sale to, merger with, or other transfer of our company to another entity.

In the event of any conflict between these Terms and any Order, the provisions of these Terms shall prevail.