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Effective as of September 30, 2025
THESE TERMS OF SERVICE (“Terms” or “Agreement”) APPLY TO THE PROVISION OF SERVICES BY EVENLY ODD, INC. (D/B/A KNACK) (“Knack”) AND FORM A BINDING CONTRACT BETWEEN YOU OR THE COMPANY ON WHOSE BEHALF YOU ACCEPT THESE TERMS (“You” or “Customer”) AND KNACK UNLESS KNACK HAS ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH YOU WITH RESPECT TO THE SERVICES. CERTAIN CUSTOMERS (each an “Agency Customer”) MAY HAVE THE RIGHT TO CREATE APPLICATIONS, AS DEFINED HEREIN, FOR USE BY ITS CLIENTS. AGENCY CUSTOMERS ARE SUBJECT TO THESE TERMS AND THE AGENCY CUSTOMER ADDENDUM ENTERED INTO BY THE PARTIES.
YOUR ACCESS TO AND USE OF THE SERVICES ARE CONDITIONED UPON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THE TERMS. BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE THE LEGAL AUTHORITY TO BIND YOURSELF OR THE COMPANY TO THESE TERMS. IF YOU DO NOT ACCEPT THE TERMS OR DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT USE THE SERVICES.
KNACK RESERVES THE RIGHT TO MODIFY THE TERMS AT ANY TIME BY POSTING AN IN-PRODUCT MESSAGE IN THE KNACK PLATFORM OR SENDING AN EMAIL TO THE ADDRESS YOU USED TO REGISTER FOR THE SERVICES. YOUR USE OF THE SERVICES FOLLOWING SUCH UPDATE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THE TERMS AS MODIFIED.
In consideration of the mutual benefits and commitments set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Knack and Customer hereby agree as follows:
1. DEFINITIONS
a. “Applicable Laws” means all applicable federal, state, and local laws, rules, and regulations, including, without limitation, those referenced herein and all import and export restrictions, the Fair Labor Standards Act, any statutes prohibiting discrimination because of race, creed, color, national origin, age, sex, or other prohibited classification, the FTC Act (15 U.S.C. §45(a)), the CAN-SPAM Act of 2003, all state, federal and international laws with respect to privacy and data security, and all state, federal and international laws with respect to artificial intelligence including but not limited to the EU AI Act.
b. “Application” means the web application created by Customer using the Services; an Application may include but is not limited to building databases, automating workflows, designing forms, and integrating with and analyzing data from Customer Systems.
c. “Authorized Users” means Customer personnel or other third parties whom Customer has authorized to access and use the Services and Knack Materials on Customer’s behalf.
d. “Confidential Information” means any information or data, in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models, or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information or data against unrestricted disclosure or use, including business information, financial data, and marketing data.
e. “Customer Content” means any data, information, or material that is submitted to the Service or Application by Customer or End Users (including from Customer Systems), and may include trademarks, trade names, logos, and service marks used by Customer in connection with the Services (collectively “Customer Marks”).
f. “Customer Systems” means those systems, such as collaboration, customer relationship management, accounting and other systems that are supported by Knack and that Customer has authorized Knack to access, integrate with, and analyze data from, in connection with Customer’s use of the Services.
g. “Educational Records” has the meaning set forth in the U.S. Family Educational Rights and Privacy Act.
h. “Effective Date” means the date you accept these Terms.
i. “End Users” means those third parties that you permit to use an Application.
j. “Feedback” means comments, questions, suggestions, or other feedback relating to the Knack Materials, the Services, or any features or functions thereof, including, without limitation, integrations with third-party applications, including Customer Systems. Feedback does not include any Customer Content.
k. “Intellectual Property Rights” include all patents, trademarks, copyrights, trade secrets, moral rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country or other jurisdiction.
l. “Knack Materials” means any documentation, instructions, templates, or other content made available by Knack to Customer to facilitate Customer’s use of the Services.
m. “Payment Card Industry Data” means Cardholder Data as defined by the Payment Card Industry Data Security Standard v4.0, Cardholder Name excluded.
n. “Protected Health Information” has the meaning set forth in the Health Insurance Portability and Accountability Act, as amended (“HIPAA”).
o. “Sensitive Personal Data” has the meaning set forth in Article 9 of the GDPR or other applicable data protection legislation.
p. “Services” means Knack’s software-as-a-service no-code application development platform.
q. “Taxes” means federal, state, local, and foreign taxes, duties, levies, withholdings, and similar assessments.
r. “Term” has the meaning set forth in Section 7(a).
s. “Users” means Authorized Users and End Users collectively.
2. OWNERSHIP AND USE OF THE SERVICES AND KNACK MATERIALS
a. Services. Knack has developed a software-as-a-service no-code application development platform (the “Services”). The Services use proprietary technology to permit Customers to create Applications without coding.
b. Ownership. This is a subscription agreement for access to and use of the Services and Knack Materials. Customer acknowledges that it is obtaining only a limited right to access and use the Services and Knack Materials and that no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Knack or licensors retain all right, title, and interest (including all Intellectual Property Rights) in and to the Services and Knack Materials, related code and apps, and any and all underlying technology and materials and any derivative works, modifications, or improvements of any of the foregoing (collectively, “Knack Technology“). Except as expressly set forth in this Agreement, no rights in any Knack Technology are granted to Customer.
c. License to use the Services. Subject to Customer’s compliance with the Terms, Knack hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, right for Customer and its Authorized Users, during the Term, to access and use the Services, as described in the plan selected upon registration set forth here and as may be updated by Knack from time to time (each a “Plan”), subject to the Terms. Customer may upgrade or downgrade its Plan as set forth in Section 8(b).
d. License to use Knack Materials. In connection with Customer’s use of the Services, Knack may make available to Customer or Authorized Users certain Knack Materials. Knack grants you a limited, non-exclusive, non-sublicensable, non-transferable right for Customer and Authorized Users, during the Term, to use, make a limited number of copies of, display, and create derivative works of the Knack Materials (and any derivative works created by or on behalf of Customer) solely as required for Customer to utilize the Services.
e. Users. Customer is responsible for all use of the Services by its Users in accordance with the Terms. The number of Users may not exceed the limit set forth in the applicable Plan. Customer is responsible for Users’ compliance with the terms of the Terms, including but not limited to safeguarding any user IDs, passwords, or other credentials and login information that have been provided to Customer or that are generated in connection with Customer’s or its Users’ use of the Services (“Credentials”). Credentials may not be shared or reassigned (except for the long-term replacement of an individual who is no longer a User) without the prior written approval of Knack. Customer will immediately notify Knack in writing of any unauthorized use of the Services or any Credentials of which Customer becomes aware.
f. Accessing the Services and Knack Materials.
i. You are responsible for obtaining and maintaining all of the appliances, hardware, software, and services that you may need to access and use the Services and Knack Materials. Without limiting the foregoing, you must obtain and maintain, and pay all charges, taxes, and other costs and fees related to internet access, telephone, computer, and other equipment, and any communications or other charges incurred by you to access and use the Services and Knack Materials.
ii. You acknowledge that you control access to and the management of the Customer Content through your Services account. You are solely responsible for the use of, and the results obtained from, the Services. You acknowledge that the Services are provided to you via resources accessed and used by Knack’s customers generally (i.e., shared resources). If your actual usage of the Services adversely affects Knack’s resources and/or use of the Knack services generally by its other customers, Knack may, in its sole discretion: (a) require you to adjust your usage of the Services, (b) automatically upgrade your then-current Plan, or (c) terminate this Agreement effective immediately.
g. Feedback. Customer, from time to time, may submit Feedback to Knack. Knack may freely use Feedback in connection with Knack Technology. Customer hereby grants to Knack a perpetual, non-exclusive, transferable, irrevocable, worldwide, royalty-free license (with rights to sublicense) to make, use, sell, offer to sell, reproduce, modify, distribute, make available, publicly display, and perform, disclose, and otherwise commercially use the Feedback.
h. Knack Marks. Customer may only use Knack’s trademarks, service marks, logos, trade dress, or trade names, whether registered or unregistered, (collectively, “Knack Marks”) to the limited extent that Knack Marks are displayed in the Application. Customer shall not remove or alter any instance of Knack Marks displayed in the Application. Customer shall not use Knack Marks for any other use without Knack’s prior written consent, including for marketing purposes.
3. RESTRICTIONS ON THE USE OF SERVICES AND KNACK MATERIALS
a. You acknowledge and agree that the Services are not intended for use in the storage, processing or handling of data that is (i) Payment Card Industry Data, (ii) Protected Health Information, unless Customer and Knack have entered into a HIPAA Knack Services Agreement, (iii) Sensitive Personal Data, (iv) Educational Records, or (v) financial information subject to the Gramm-Leach Bliley Act of 1999.
b. You acknowledge and agree that you will not, and will not authorize or permit any User or third party to:
i. Modify, copy, or create derivative works based on the Services or Knack Materials, except as explicitly set forth herein;
ii. Disassemble, reverse engineer, or decompile the Services or any part thereof, or attempt to gain any access to the Services or related software, systems, platforms, or networks for any purpose, including in order to copy any ideas, features, content, functions, or graphics of the Services or Knack Materials;
iii. Interfere with or disrupt the integrity or performance of the Services;
iv. Send or store infringing, obscene, threatening, hateful, vulgar, abusive, harassing, defamatory, offensive, libelous, or otherwise unlawful or tortuous material, or send or store any viruses or malicious code, via the Services;
v. Access the Services for the purpose of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes, or release any results of performance tests related to the Services to any third party without Knack’s prior written consent;
vi. Sell, distribute, rent, lease, license, sublicense, resell, transfer, assign, display, modify, timeshare, outsource, or otherwise make available to or provide the Services or any Application to a third party (other than End Users) or use it in a service bureau, outsourcing environment;
vii. Use the Services in a manner or for any purpose that is not in compliance with all Applicable Laws or the AWS Acceptable Use Policy; or
viii. Use any Knack Materials, separately from the Services or use the Services or any component thereof for any purpose other than as specifically provided herein.
4. CUSTOMER CONTENT AND CUSTOMER SYSTEMS
a. Ownership. As between Knack and Customer, Customer retains all right, title, and interest in and to Customer Content and Customer Marks. Customer is solely responsible for the accuracy, quality, and completeness of Customer Content and for determining whether to provide or make available Customer Content available to Knack.
b. Rights in Customer Content. Customer represents and warrants that: (i) owns or otherwise controls any Customer Content that it provides or makes available to Knack and that it is authorized to provide the Customer Content to Knack to perform the Services; (ii) it will comply with all Applicable Laws in its use of the Services; (iii) it has obtained, or will obtain prior to disclosure of Customer Content to Knack, any and all necessary and appropriate authorizations, consents, permissions, and rights to provide or make available the Customer Content to Knack, including, as applicable, from individuals whose information is included in the Customer Content; (iv) the Customer data does not violate any third party Intellectual Property Rights, or publicity, privacy or other rights, (v) providing the Customer Content to Knack does not violate the terms of service, privacy or other policies and/or any other agreements governing Customer’s use of the Customer Systems, and (vi) Knack and its licensors will have the right to collect, extract, compile, synthesize, and analyze data and information resulting from or relating to Customer’s use of the Services (“Usage Data”).
c. Rights in Customer Systems. Customer represents and warrants: (i) that it has a valid entitlement to use the Customer Systems throughout the Term; (ii) that it will comply with all agreements, terms and conditions, and policies in effect between Customer and third-party providers of Customer Systems; and (iii) that it has the right to provide Knack with access to the Customer Systems for the purpose of providing the Services.
d. Licenses. Customer hereby grants to Knack and its licensors: (i) a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license during the Term to access and use Customer Content solely to the extent required to perform Knack’s obligations under the Terms; (ii) a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license during the Term to access and use Customer Systems solely to the extent required to perform Knack’s obligations under the Terms; and (iii) a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid up, sublicensable right and license to use the Usage Data solely in an aggregated, de-identified and/or anonymized format such that Customer, Users and individuals whose data is included in the Usage Data is not identified, for the sole purpose of enhancing and improving the Services or for other legitimate business purposes.
5. AI FEATURES
a. The Services may include artificial intelligence features (collectively, “AI Features”) that may use Customer Content, including but not limited to data, content, or other information input into chat and message logs (“Input”), to make predictions, generate content based on patterns in data, and create new content based on such data and computer models. Customer acknowledges that such new content generated by AI Features (“Output”) may produce inaccurate or inappropriate content. It is Customer’s responsibility to evaluate whether any such Outputs are appropriate for Customer’s use case, including whether human review is appropriate before using or sharing such Outputs. Customer acknowledges that factual assertions in Outputs should not be relied upon without independently checking their accuracy, as they may be false, incomplete, misleading, or not reflective of recent events or information. The AI Features and Output are not intended to substitute for the services of trained or licensed professionals. Knack makes no representations or warranties and provides no indemnities with respect to any AI Feature or Output.
b. Inputs and Outputs are deemed Customer Content under the Agreement and subject to the rights, restrictions, and obligations applicable thereto. Third parties may submit information or materials to an AI Feature that generate results that are identical or similar to Output (“Third-Party Results”), and Customer acknowledges it has no right, title, or interest in or to any Third-Party Results.
c. Customer will not, nor permit Users to: (i) use an AI Feature to develop any models that compete with Knack or its licensors or its third-party LLM providers; or (ii) use any method to extract data, or infer information, from an AI feature or otherwise attempt to discover underlying components of the AI Feature, except to the extent such restrictions are contrary to applicable law (e.g., underlying components of models (for example model parameters, algorithms, systems). Customer will not modify the intended purpose of an AI Feature, including in such a way that the AI Feature could be classified as high-risk or prohibited under applicable AI legislation.
d. It is Customer’s responsibility to use the AI Features in accordance with Applicable Laws. Customer and its Users must also be aware of and comply with: (i) the Anthropic Usage Policy, (ii) the Anthropic policy on countries and regions Anthropic currently supports; (iii) the Anthropic Service Specific Terms, (iv) the AWS Responsible AI Policy, and (v) the Intercom Acceptable Use Policy, as applicable to Customer’s use of AI Features.
e. Based on the country from which you access AI Features, Customer agrees to comply with the following:
| US-hosted workspace | – OpenAI Sharing and Publication Policy – OpenAI Usage Policies – Anthropic Usage Policy – Anthropic Supported countries and regions (Commercial API access only) – Google Cloud Platform, Generative AI Prohibited Use Policy – Code of Conduct for Azure OpenAI Services – Microsoft Acceptable Use Policy for Online Services (contained within Universal Licensing Terms for Online Services) – Microsoft Generative AI Services Terms (contained within Universal Licensing Terms for Online Services) |
6. MAINTENANCE AND TECHNICAL SUPPORT
a. Maintenance. Customer understands that regular maintenance and backup procedures will cause temporary downtime during which the Services cannot be used. There may be interruptions to the Services during non-scheduled maintenance. Knack will use reasonable efforts to communicate with Customer about planned maintenance to the Services.
b. Changes. Knack may implement changes and improvements to the Services from time to time, but in no event will such changes materially reduce the functionality provided by the Services as of the Effective Date. Knack will use reasonable efforts to communicate with Customer about planned changes to the Services.
c. Technical Support. Knack will provide its standard support then in effect for the Services (as may be updated from time to time) set forth here www.knack.com/pricing/ at no additional charge. Knack shall have no obligation to provide support in connection with any failure of the Services caused by or related to Customer’s use of the Services not in strict compliance with the terms of this Agreement. All support will be provided on an “AS-IS” basis.
7. TERM AND TERMINATION
a. Term. The Terms shall commence on the Effective Date and shall continue for a period of one (1) month (“Monthly Term”) or one (1) year (“Annual Term”) thereafter (each an “Initial Term”). Following the Initial Term, of the Terms have not been terminated in accordance with Section 7(b), the Terms shall automatically renew for successive periods equal to the duration of the Initial Term (each an “Annual Renewal Term” or a “Monthly Renewal Term,” collectively a “Renewal Term,” and each together with the applicable Initial Term, the “Term”), unless either party notifies the other party of its intent to non-renew no less than one (1) day prior to the end of the then-current Initial Term or Renewal Term.
b. Termination for Breach; Suspension. Either party may terminate the Terms if the other party (i) fails to cure any material breach of the Terms (including a failure to pay fees) within thirty (30) days after written notice; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). Knack may suspend Customer’s access to the Services and Customer Content during any period that Customer is in material breach of the Terms or its access to and use of the Services, or the Customer Content, creates a material security vulnerability. Where practicable, Knack will give you at least two (2) days’ advance notice of the suspension unless the suspension is made under emergency circumstances. Knack may, in its discretion, reinstate access to the Services when the grounds for suspension are cured.
c. Effect of Termination. Upon termination of the Terms, all rights granted to you hereunder will immediately terminate, and you will cease use of the Knack Technology. Customer is solely responsible for exporting Customer Content before termination. Knack will retain Customer Content for up to twenty-eight (28) days from the effective date of termination. If you wish to export Customer Content following Knack’s termination for breach, Knack will either, at its option, enable short-term access to the Services at a scheduled time so that you may export Customer Content, or export Customer Content using its standard export tools. Knack has no obligation to retain Customer Content after the twenty-eight (28) day period and may destroy Customer Content at any time thereafter.
d. Survival. Upon expiration or termination of the Terms, the following sections of the Terms shall survive: Section 2(a) (Ownership), Section 2(g) (Feedback), Section 2(h) (Knack Marks), Section 4 (Customer Content and Customer Systems), Section 7(c) (Effect of Termination), Section 7 (d) (Survival), Section 8 (Fees; Payment Terms), Section 9 (Confidentiality); Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 13(c) (Notices), Section 13(d) (Dispute Resolution); Section 13(f) (Entire Agreement; Severability), Section 13(h) (Publicity; Marketing), and any other terms that by their nature are intended to survive expiration or termination.
8. FEES; PAYMENT TERMS.
a. Fees. In consideration of your access to and use of the Services, you shall pay the monthly or annual fees set forth in the Plan, as of the Effective Date and upon the effective date of each Renewal Term thereafter (the “Fees”). All Fees are due and payable in U.S. dollars. Knack may change the Fees for any Renewal Term by notifying Customer, either through in-product message or by email to the email address used at registration, at least ten (10) days before the end of the then-current Monthly Term or Monthly Renewal Term or at least thirty (30) days before the end of the then-current Annual Term or Annual Renewal Term.
b. Upgrades and Downgrades to Plan. Customer may upgrade their Plan to a higher-level Plan at any time, and Customer will be charged a pro-rated amount through the end of the then-current Initial Term or Renewal Term. Customer may request to downgrade their Plan, including changing their Plan from an Annual Term to a Monthly Term at any time, and Knack will process such change no later than the end of the then-current Initial Term or Renewal Term.
c. Credit Card Charges. If you pay by credit card and Knack does not receive payment from your credit card issuer, you agree to pay Knack all amounts due immediately upon demand, including any fees resulting from failure of your credit card issuer to process charges. If you dispute any charge to your credit card made by Knack, unless prohibited by law, you agree not to cancel, revoke, charge back, or dispute any amounts previously charged to your credit card. If you do any of the foregoing and it is later determined that the charge was properly authorized pursuant to these Terms, you agree to pay all out-of-pocket fees and costs incurred by Knack as a result of the improper cancellation, revocation, chargeback, or dispute.
d. Late Payment. You must pay all Fees in full each month as set forth in this Section 8. In the event of late payment, Knack reserves the right to suspend the provision of the Services to you and/or impose a late payment fee and/or charge interest on any amounts overdue. Such late payment fee will be the lesser of: (1) one and one-half percent (1.5%) of such overdue payment per every thirty (30) day period or portion thereof; or (2) the maximum amount permissible by applicable law. You agree to pay all attorneys’ and collection fees arising from efforts by Knack to collect any past due amounts from you to the extent allowed by law.
e. Taxes. All Fees are exclusive of taxes, and Customer is responsible for the payment of all taxes in connection with the Services, excluding taxes on Knack’s net income. Knack will not invoice Customer, and Customer will not pay, for sales, use, or excise taxes if Customer provides Knack with certificates or other evidence supporting the applicable tax exemptions.
f. No Refunds. All Fees are final and non-refundable. No refunds or credits will be issued for partial periods of service, downgrades of your Plan, or refunds for periods unused with an active subscription, including in the event of termination or suspension of your access to the Services in accordance with the Terms. There are no charges for canceling a Plan at least one (1) business day prior to the end of an Initial Term or Renewal Term, as applicable. The Fees charged for each Renewal Term will be automatically updated to reflect any changes to the Fees or the Service Plan, including upgrades or downgrades. Subscription changes, including downgrades, may result in loss of access to Customer Content, features, or an increase or reduction in the other functionality provided by the Services.
9. CONFIDENTIALITY
a. Confidential Information. Customer and Knack may disclose information to one another, and Customer may access information in connection with the Services, which is considered by the disclosing party to be proprietary or Confidential Information. “Confidential Information” includes any information or data, in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models, or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information or data against unrestricted disclosure or use, including business information, financial data, and marketing data. Confidential Information does not include information that (i) was rightfully in the receiving party’s unrestricted possession prior to disclosure to it by the disclosing party, (ii) is or becomes a matter of public knowledge through no fault of the receiving party and without breach of the Terms by the receiving party, (iii) is rightfully received by the receiving party from a third party without restriction, or (iv) is or was independently developed by the receiving party. Customer Content is considered Customer Confidential information.
b. Obligations. All Confidential Information shall remain the sole property of the disclosing party, and the receiving party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information during the Term of the Terms and for a period of three years following the expiration or termination of the Terms. The receiving party shall not use the Confidential Information of the other party except as necessary to fulfill its obligations under the Terms, nor shall it disclose, copy, distribute, republish, or allow any third party to have access to Confidential Information to without the prior written consent of the disclosing party; provided, however, the receiving party may disclose the disclosing party’s Confidential Information to its employees, consultants, and agents who are bound by obligations of confidentiality no less protective than those set forth in the Terms, and receiving party shall be responsible for any unauthorized disclosure of any Confidential Information by such persons as if receiving party had made such unauthorized disclosure itself.
c. Compelled Disclosure. If a party becomes legally compelled to disclose any Confidential Information, that party shall provide the other party with prompt prior written notice of such requirement so that the party may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, the compelled party agrees to furnish only that portion of the information which is legally required, as is advised by written opinion of counsel, and to exercise reasonable efforts to obtain confidential treatment of such information.
10. LIMITED WARRANTY
a. Limited Warranty. Knack warrants, for Customer’s benefit only, that the Services will operate in substantial conformity with the applicable documentation. Knack’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Knack to use commercially reasonable efforts to correct the reported non-conformity, or if Knack determines such remedy to be impracticable, either party may terminate these Terms and Customer will receive a refund of any Fees Customer has pre-paid for use of the Services for the terminated portion of the applicable Monthly or Annual Term. The limited warranty set forth in this Section 10(a) will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first identified the non-conformity, or (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party hardware, software or services.
b. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 10(a), THE SERVICES AND KNACK MATERIALS ARE PROVIDED “AS IS”. NEITHER KNACK NOR ITS LICENSORS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. KNACK DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES KNACK WARRANT THAT IT WILL REVIEW ANY CUSTOMER CONTENT FOR ACCURACY. KNACK SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT FAILED TO BE SENT USING THE SERVICES. KNACK SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, ERRORS IN TRANSMISSION, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, UNAUTHORIZED THIRD-PARTY ACCESS, CUSTOMER SYSTEMS, OR OTHER SYSTEMS, OR CAUSES OUTSIDE THE REASONABLE CONTROL OF KNACK. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
11. INDEMNIFICATION
a. Indemnification by Knack. Knack will indemnify, defend and hold Customer harmless from and against any and all losses, damages, liabilities, costs, and expenses including, without limitation, reasonable attorneys’ fees and disbursements (“Losses”) incurred by Customer arising out of any claim by an unaffiliated third party (each a “Claim”) that the Services (not including any AI Feature) infringe the Intellectual Property Rights of such third party. Knack shall have no indemnification obligation for any infringement Claim to the extent that it arises from: (i) use of the Services with any software, hardware or components not owned or controlled by Knack; (ii) any modification to the Services made by or on behalf of Customer; (iii) use of the Services other than in the manner expressly authorized under the Terms; (iv) Customer Content; or (v) Customer’s breach of the Agreement or its gross negligence of willful misconduct in performing its obligations hereunder. If, in the sole determination of Knack, the Services have or may become the subject of an infringement Claim, Knack will either procure the right, at Knack’s sole expense, to permit Customer to continue using the Services, or replace or modify the Services so as to avoid infringement without materially altering the functionality or performance thereof. If Knack reasonably and in good faith determines that neither of the foregoing are commercially practicable, Knack may terminate the Terms and the licenses granted herein effective immediately upon written notice to Customer and will refund the unearned pro-rata portion of any prepaid Fees. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND KNACK’S ENTIRE LIABILITY FOR CLAIMS.
b. Indemnification by Customer. Customer shall indemnify, defend and hold harmless Knack and Knack’s officers, directors, employees, and agents (each a “Knack Indemnitee”) against any and all Losses incurred by a Knack Indemnitee in any action between such Knack Indemnitee and any third party arising out of or related to Customer use of the Services.
c. Indemnification Process. The indemnification obligations set forth herein are contingent upon the following conditions:
i. The indemnified party must promptly notify the indemnifying party in writing of the third-party claim or action (however, failure of the indemnified party to so promptly notify the indemnifying party will not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent it has been damaged thereby);
ii. The indemnified party will reasonably cooperate with the indemnifying party in the defense of the matter; and
iii. The indemnifying party will have sole control of the defense of the action and negotiations for its settlement and compromise; provided, however, that the indemnified party may, at its own cost, obtain separate counsel to represent its interests.
12. LIMITATION OF LIABILITY
a. EXCEPT FOR (I) A MATERIAL BREACH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 9, (II) EACH PARTY’S INDEMNIFICATION OBLIGATIONS, AND (III) CUSTOMER’S OBLIGATION TO REMIT ALL FEES PROPERLY DUE AND OWING UNDER THIS AGREEMENT, EACH PARTY’S LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DAMAGES FOR ANY CLAIMS ARISING UNDER OR IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING WITHOUT LIMITATION, BREACH OF WARRANTY AND NEGLIGENCE CLAIMS) IS LIMITED TO THE ACTUAL, AWARDED DIRECT DAMAGES, NOT TO EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION AROSE.
b. IN NO EVENT WILL EITHER PARTY, THEIR RESPECTIVE LICENSORS, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS OR AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR (1) ANY CLAIMS OR DEMANDS OF THIRD PARTIES (OTHER THAN THOSE THIRD-PARTY CLAIMS COVERED BY SECTION 11); OR (2) ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR ANTICIPATED PROFITS, LOSS OF REVENUE, ECONOMIC LOSS, LOSS OF DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE OF EQUIPMENT, OR INTERRUPTION OF BUSINESS, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
13. MISCELLANEOUS
a. Force Majeure. Neither party shall be under any liability to the other for any delay in performing any obligation under the Terms (other than the obligation to pay Fees) to the extent caused by reason of circumstances beyond the reasonable control of that party and without such party’s fault or negligence, which shall include but not be limited to acts of God, war, strikes, lack or failure of transportation facilities, acts of terrorism, fire, acts of government authority. In the event of a force majeure event, the affected party shall provide prompt written notice to the other party, stating the period of time during which it is expected to continue. If any such failure or delay in performance continues for more than sixty (60) days, either party may terminate the Terms upon written notice to the other.
b. Independent Contractors. Customer and Knack are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchisee-franchisor relationship is intended or created by the Terms. There are no third party beneficiaries to this Agreement.
c. Notices.
i. Except as explicitly stated herein, any notice to Knack shall be given in writing to Legal Counsel at Knack:
Knack
502 W 7th Street
Suite 100
Erie, PA 16502
ii. Except as explicitly stated otherwise herein, any notice to Customer will be given to the address that Customer provides to Knack during the registration process.
iii. Each party will update its address by proper notice to the other party in the same manner as provided herein. Notice shall be deemed given twenty-four (24) hours after the notice is sent, unless the method of communication is email and the sending party is notified that the electronic mail address is invalid, or the recipient does not acknowledge receipt. Alternatively, either party may give notice by certified mail, postage prepaid and return receipt requested, or by reputable overnight carrier, which notice shall be deemed given three (3) days after the date of mailing.
d. Dispute Resolution.
i. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, United States of America, without regard to its conflicts of laws principles.
ii. Binding Arbitration. ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THESE TERMS, THE KNACK SERVICES, OR BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, WHICH CANNOT FIRST BE SETTLED AMICABLY AND SATISFACTORILY BETWEEN THE PARTIES, SHALL BE DETERMINED IN PHILADELPHIA, PA BY BINDING ARBITRATION IN THE ENGLISH LANGUAGE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES.
iii. Other Controversies. In the event the above-referenced arbitration clause is ruled unenforceable by a court of law, you and Knack agree that all disputes and matters whatsoever related to, arising under, in connection with or incident to the terms of this Agreement, or the Knack Services, shall be litigated, if at all, before the United States District Court for the Western District of Pennsylvania in Erie, Pennsylvania or, as to those lawsuits to which the federal courts of the United States lack subject matter jurisdiction, before a court located in Erie County, Pennsylvania, to the exclusion of the courts of any other county, state or country. You hereby consent to such exclusive jurisdiction, waive any jurisdiction, venue or other objection that may be available, and waive any right to a jury trial in any such court.
e. Export Compliance. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Customer may not permit users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Knack to be in violation of U.S. export laws, even if the use is permitted the laws applicable to you or your user or customer. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.
f. Entire Agreement; Severability. The Terms represent the entire agreement between Customer and Knack with respect to the subject matter hereof and supersede all prior agreements between the parties regarding the subject matter of the Terms. Any pre-printed terms and conditions on or attached to a Customer purchase order or similar document will be of no force or effect. If one or more of the provisions in the Terms are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect.
g. Assignment. The Terms may not be assigned by a party without the prior written consent of the other party unless such assignment is to (i) its parent or subsidiary; (ii) an acquirer of substantially all of its stock or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results or would result in a competitor of Knack directly or indirectly owning or controlling 50% or more of Customer shall entitle Knack to terminate the Terms for cause immediately upon written notice.
h. Publicity; Marketing. Knack may identify you as a customer on Knack’s website, provided that such identification is no more prominent than the identification of Knack’s other customers and is otherwise consistent with Knack’s practice of identifying its customers on its website at that time. Except as otherwise provided herein, each party agrees to submit to the other party all press releases and other publicity matters or materials relating to this relationship between the parties, or use trade names, logos, trademarks or service marks of the other party, and each party further agrees not to publish or use such press releases or publicity matters or materials, without the other party’s prior written consent except to the extent that a party determines that a disclosure is required under Applicable Laws.
