THIS END-USER LICENSE AGREEMENT (“EULA”) IS AN ELECTRONIC RECORD AND ELECTRONIC CONTRACT BETWEEN YOU (“You/you”, “Your/your”) AND KAHA PTE LTD, 81, AYER RAJAH CRESCENT, #02-42, SINGAPORE (“KaHa”, “We/we”, “Our/our”, “Us/us”) FORMED UNDER THE PROVISIONS PERTAINING TO ELECTRONIC DOCUMENTS / RECORDS IN VARIOUS STATUTES AS AMENDED FROM TIME TO TIME. THIS DOCUMENT DOES NOT REQUIRE ANY PHYSICAL, ELECTRONIC OR DIGITAL SIGNATURE.
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON ‘I AGREE’ OR OTHERWISE USING THIS SOFTWARE (as defined below), YOU (1) INDICATE THAT YOU ARE OF LEGAL CONTRACTUAL AGE, AND (2) YOU CONFIRM THAT YOU HAVE THE LEGAL CAPACITY TO EXECUTE THIS EULA OR THAT YOU HAVE EXECUTED THIS EULA THROUGH A LEGAL GUARDIAN OR LEGAL REPRESENTATIVE, AND (3) YOU AGREE TO CONTRACT ELECTRONICALLY WITH KAHA (as defined below), AND (4) YOU HAVE READ, UNDERSTOOD AND AGREE TO BE LEGALLY BOUND AND GOVERNED BY THE TERMS AND CONDITIONS OF THIS EULA AS REGARDS THE SOFTWARE.
IF YOU HAVE EXECUTED THIS EULA, BREACHING THE FOREGOING CLAUSES OR IF YOU DO NOT AGREE TO THE TERMS CONTAINED HEREIN, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR OTHERWISE USE THIS SOFTWARE AND DELETE ALL COPIES OF THE SOFTWARE.
This EULA is effective upon your acceptance of the same (directly or indirectly as mentioned above). Please note all Software and the associated services under this EULA are offered by KaHa under its brand name ‘COVE®’ and ‘COVENET®’.
This EULA is in addition to any other terms, conditions or limitations applicable to the physical product purchased by You (if any) for using in conjunction with the Software (for example a smart wearable device) or any other agreements executed between You and another Person. Where the terms and conditions of this EULA and any other such agreement are in conflict, this EULA shall prevail between Yourself and KaHa.
DEFINITIONS AND INTERPRETATIONS
1.1. An “Associated Party” means (i) a subsidiary company of KaHa, (ii) a service provider of KaHa, and/or (iii) client of KaHa.
1.2. “COVE® Platform” means KaHa’s Smart IoT technology Platform and includes (i) the tools & applications provided by KaHa under this Agreement, back-end cloud services, all source codes & object codes, software codes, scripts, graphics, displays, text, documentation, libraries, directories, algorithms, databases, structure and organization of the aforesaid items, and web interface developed by KaHa for the Mobile Application, and (ii) Smart Module & firmware software in device (where it is KaHa’s), and the technology used by KaHa in the Smart Module and includes, without limitation, the software codes, back-end cloud architecture and systems, all Hardware design (including PCBA design), all sensor technology and all software, protocols and, (iii) the various verticals and services like safety, health and wellness, sport and fitness, digital payment, various use cases and other verticals in future, and (iv) AI/ML algorithm, technical architecture, SDKs and eco-system partnerships that are integrated to provide curated and relevant services to the customers and consumers globally, and (v) its complete maintenance and upgrades as determined by KaHa from time to time.
1.3. “COVENET®” means the mobile application software (Android & iOS) known as “COVENET®” and developed and owned by KaHa and shall include (without limitation) the COVE® Platform and all software codes, source codes, scripts, interfaces, graphics, videos, images, digital content, displays, text, documentation, format, directories, algorithms, databases, features available in the application and other components; and (ii) structure and organization of the aforesaid items, (iii) all updates, modifications, variants, replacements or enhancements to the aforesaid items, whether or not any such update or version is downloaded or in use at any point of time.
1.4. “COVENET® Network” means the closed virtual social network of all users of Mobile Applications and those registered on COVE® Platform.
1.5. “Intellectual Property Rights” or “Intellectual Property” or “IP Right” is all intellectual property, including without limitation patents, inventions (whether or not patentable and whether or not reduced to practice), utility models, trademarks and service marks, trade names (including without limitation collective marks), trade dresses and the goodwill associated therewith, domain names, designs, copyrights (whether registered or not), databases, proprietary rights, source codes and object codes, firmware software, design of circuit boards, algorithm, any technical, commercial or financial information of a proprietary or confidential nature (including without limitation proposals) computer data and software, software codes, trade secrets and know-how; and in all cases whether or not registered or registrable and including registrations and applications for registration or renewal of any of these, and all rights to apply for registrations, applications, renewals, extensions, combinations, divisions, or reissues for the same, rights associated with works of authorship throughout the universe, including exclusive exploitation rights, copyrights, geographical indicators, moral rights, broadcasting rights, displaying rights, distribution rights, selling rights, abridged rights, translating rights, reproducing rights, performing rights, communicating rights, adapting rights, circulating rights, and mask works and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world.
1.6. “Person” means an individual, corporation, partnership, limited liability company, association, unincorporated association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
1.7. “Mobile Application(s)” means the mobile application software developed and owned by KaHa for use in conjunction with a third-party’s smart wearable device (such as a smart watch, fitness band, leather wallet, leather belt etc.) and shall include (without limitation) the COVE® Platform and all software codes, source codes, scripts, interfaces, graphics, videos, images, digital content, displays, text, documentation, format, directories, algorithms, databases, features available in the application and other components; and (ii) structure and organization of the aforesaid items, (iii) all updates, modifications, variants, replacements or enhancements to the aforesaid items, whether or not any such update or version is downloaded or in use at any point of time.
1.8. “Software” means the (i) Mobile Application(s) and/or COVENET® mobile application (as the case may be) that has been downloaded by You and (ii) any other software that may form part of the smart wearable device or the Mobile Application(s) and includes, without limitation, the embedded software that is part of the smart wearable device (such as smart watches, fitness bands etc.).
1.9. “User Content(s)” refers to your comments, tweets, posts, photos, pictures, messages, images, videos, maps, materials or other User-generated content or information.
1.10. An “Objectionable User Content” is any content that most users would find as offensive, disturbing, upsetting, or inappropriate or any content which is illegal. Objectionable User Content includes, but is not limited to (i) any obscene, defamatory, libellous, slanderous, profane content; (ii) any sexually explicit materials; (iii) any commentary or hate speech about religion, gender, race and other targeted groups; (iv) content that infringes upon the rights of third-party including copyrights, trademarks, patents, privacy, personal or proprietary rights; (v) content that is deceptive or fraudulent; (vi) Content that portrays or encourages violence, bullying or harassment; (vii) content that promotes the use of illegal, illicit or regulated substances including tobacco products, drugs or narcotic substances, firearms or ammunition; (viii) content that promotes any illegal or illicit behaviour such as gambling.
1.11. Unless the context of this Agreement otherwise requires:
(i) words using the singular or plural also include the plural or singular, respectively;
(ii) words of any gender are deemed to include the other gender;
(iii) the terms “hereof”, “herein”, “hereby”, “hereto” and derivative or similar words refer to this entire Agreement or specified Sections of this Agreement, as the case may be; the term “Clause” refers to the specified Clause of this Agreement;
(iv) reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, and any reference to statutory provision shall include any subordinate legislation made from time to time under that provision;
(v) reference to the word “include” shall be construed without limitation.
OWNERSHIP OF SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS
2.1. KaHa owns exclusively and reserves all rights, title and interest, including, without limitation, all Intellectual Property Rights in and to the Software and COVE® Platform. The Software is not sold or otherwise transferred to You, in any manner, whether limited or absolute and no title, interests, IP Rights, or ownership rights to the Software are transferred to You pursuant to this EULA. The Software is only licensed to You in accordance with this SLA.
2.2. Some of the materials, features and content is provided on the Software under valid licenses from Persons or in association with KaHa’s Associated Parties or other third-parties and all rights, title and interest in and to all such materials belong to the respective parties.
2.3. You acknowledge and agree that the structure, organization and code of the Software and all ideas, methods, algorithms, formulae, processes, concepts used in developing or incorporated into the Software, all future updates, upgrades, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, releases, in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are, and shall remain, trade secrets, intellectual property and proprietary property of KaHa, having great commercial value to KaHa. Further, the Software is strictly confidential to KaHa.
LICENSE GRANT AND RESTRICTIONS ON USE OF SOFTWARE
3.1. Limited license grant
This EULA provides to You with a personal, revocable, limited, non-exclusive, royalty-free, non-transferable license to use the Software conditioned on Your continued compliance with the terms and conditions of this EULA. The Software is licensed to You by KaHa for the limited purpose of Your personal use only and strictly in accordance with the terms and conditions of this EULA. You are not granted any IP Rights in or to the Software by implication, estoppel or other legal theory, and all rights in and to the Software not expressly granted in this EULA are hereby reserved and retained by KaHa.
3.2. Restrictions on use
(i) You shall use the Software strictly in accordance with the terms of this EULA and You shall not: (a) replicate, decompile, reverse engineer, disassemble, decrypt, corrupt, decode, tamper, attempt to derive the source code of Software or in any way override or break down any protection/security system integrated into the Software, or decrypt the Software; (b) create or recreate the source code for the Software; (c) remove, erase, obscure, or tamper with any copyright, trademark or any other product identification or proprietary rights notices, seal, or instructional label displayed on, or encoded or recorded in or on any Software; (d) lease, lend or use the Software (in whole or in part), or sell, market, license, sublicense, distribute, or otherwise grant to any Person or entity any right to use the Software, alone or in combination with any other product or service, whether on a fee basis or otherwise; (e) replicate, make any modification, adaptation, improvement, enhancement, translation or derivative work from the Software or any content (including any videos, images, resources) displayed or otherwise provided on or through the Software; (f) combine or merge any part of the Software with or into any other software or refer to or otherwise use the Software as part of any effort to develop any other software having any functional attributes, visual expressions, or other features similar to those of the Software or to compete with KaHa; (g) use the Software for any revenue generating endeavour, commercial enterprise, or other purpose; (h) use any proprietary information or interfaces or other Intellectual Property of KaHa in manner whatsoever, or (i) use the Software or other content for any illegal or unauthorized purpose; or (j) transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature; or (k) upload, post, email or transmit or otherwise make available any Objectionable User Content; or (l) attempt to do any of the foregoing for any purpose whatsoever, without the prior written permission of KaHa.
(ii) Further You agree to use the Software only for purposes that are legal, proper and in accordance with this EULA and any applicable laws, policies and guidelines. Any attempted action in contravention of the provisions of EULA and particularly the restrictions contained in this clause may be, in KaHa’s sole discretion, null and void and of no force or effect. Further, in case of violation of the provisions contained herein, KaHa reserves its right to remove any User Content posted by You that violates this EULA, terminate Your account and/or bar You from any further access to Software and other KaHa’s products and services. KaHa reserves its right to take any legal or other action against You that KaHa may deem necessary.
4.1. To use the Software, You will need one or more of the following: compatible equipment (laptop, desktop or handset as the case may be), internet access (via WiFi or mobile data), compatible Android version (or iOS version (as the case may be), compatible Bluetooth Low Energy (BLE) version, Global Positioning System (GPS), a valid SIM for the registered number and certain other software, and may require obtaining updates and upgrades from time to time.
4.2. Carrier Charges - You recognize that You are responsible for paying all roaming charges, data charges, text message (SMS) charges, plan charges, and any other possible charges that result because of the use of Software on Your mobile phone. You agree to pay all charges to your carrier and that KaHa is NOT responsible for paying any charges You incur from your carrier.
4.3. Accessibility/Availability of Software - The accessibility of, and ability to use the Software and the solutions/features that the Software provides to you, is dependent on Your system meeting the above-mentioned conditions and You granting the permissions requested in the Software. These permissions are also required for the Software (and the solutions/features contained therein) to function optimally. Further, Your accessibility and ability to use the Software and the features provided in the Software is also dependent on mobile network availability, availability of sufficient battery charge on Your mobile phone and smart wearable device, Pairing and connectivity of wearable device to mobile phone, running of app on Your & network users’ mobile phone, internet connectivity of your and other network users’ mobile phone, Proper working of the sensors or other hardware that is available on Your smart wearable device, proper contact of the sensors or other hardware of the smart wearable device with your skin/body as provided in the user manuals of the device, other requirements that may be provided with your smart wearable device’s user manual, technical snags and access to networks etc. You understand that You are responsible for obtaining and maintaining all required equipment and services for accessing and/or using the Software. You also understand and acknowledge that the Software and the features provided therein are for your assistance only and not a substitute or replacement fitness or any other Software’s features related safeguards, and you are responsible for implementing safeguards appropriate to your needs in the event that an error/issue in the Software occurs and limits your usage of the Software. It is your responsibility to evaluate the accuracy, completeness and usefulness of the Software and services and other information provided by Software.
TERMS AND CONDITIONS FOR SAFETY NOTIFICATION FEATURE (IF ANY) IN THE SOFTWARE
5.1. Amongst other features available on the Software, there may be a safety notification feature (“Notification feature”). The Notification feature notifies the guardians and other persons nominated by You (“Your Nominees”) and provides to Your Nominees options for actions that can be taken by them.
5.2. Please note that the utility and resulting impact of the Notification feature offered by the Software is dependent on many variable factors, including without limitation, the creation of a substantial network of COVENET® Network users, optimal utilization of the Software by You and other users of COVENET® Network, availability of sufficient battery charge on your smart wearable device, Pairing and connectivity of wearable device to mobile phone, running of app on Your & network users’ mobile phone, internet connectivity of your and network users’ mobile phone, technical snags and access to networks etc. Please note that the Notification feature is in addition to and not a substitute for other safety measures that You may take.
5.3. NEITHER KAHA NOR ANY OTHER PERSON ASSOCIATED WITH KAHA REPRESENTS, GUARANTEES OR WARRANTS, THAT THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, THE NOTIFICATION FEATURE) WILL WORK AS EXPECTED OR RESPOND IN A SITUATION OF DISTRESS ACT SO AS TO ENSURE YOUR OR ANOTHER COVENET® NETWORK USER’S SAFETY OR THAT THE SOFTWARE WILL KEEP YOU SAFE. NEITHER KAHA NOR ANY OTHER PERSON ASSOCIATED WITH KAHA REPRESENTS, GUARANTEES OR WARRANTS THAT THE SOFTWARE WILL BE ACCESSIBLE, OR WILL OPERATE TO RESCUE YOU OR ANOTHER SOFTWARE USER, OR AMELIORATE ANY SITUATION OR CIRCUMSTANCES THAT MAY ARISE OR NECESSITATE THE USE OF THE SOFTWARE.
5.4. Please note this clause 5 is not applicable to You if the Software does not have the Safety Notification Feature.
THIRD-PARTY & USER CONTENT
6.1. Third-Party Content, Integration
(ii) The Software may provide you with settings / options to link/integrate some of the features and data in the Software with other Third-party Content (for example Apple Health/Google Fit). Upon your opting for such linkage/integration, KaHa will share all relevant data that has been collected by KaHa from the Software, with such Third-party. You are voluntarily integrating such information and KaHa is not responsible for any malfunction, data loss / modification or any other issue that may be faced by the User upon such linkage/integration and the User is solely responsible for the same.
6.2. User Content - Certain features in the Software may allow You to upload, generate or share User Content. This section shall govern Your rights and obligations as regards the User Content.
(i) By uploading any User Content on the Software or by otherwise using the Software to share any User Content You are affirming that You are of contractual age & capable of executing an agreement and that you alone created or own the User Content and no one else has any rights to it or could claim they own it or that it infringes on rights of others. Likewise, if there are people in the User Content other than yourself, you are also affirming that they are of contractual age and they know that you are giving us permission to use the User Content, and have consented to it being used by Us pursuant to license under this Clause.
(ii) You will continue to own the User Content. You are giving KaHa and its Associated Parties a non-exclusive, royalty-free license to use the User Content which can’t be revoked by you except where permitted by law. KaHa and its Associated Parties will have the right to reproduce, use and exploit the User Content in any form (including, but not limited to, video, internet posting, reproduction, display, email, publication, and distribution), either through the Software or our other products and services or services provided by third-parties, throughout the world in perpetuity in any medium now known or later developed and without restriction or limitation. Also, if you posted your User Content with your real name, username, caption, location information or other identifying information, you agree that we can use that information along with your User Content. The User Content and other information may be used for advertising and promotional purposes and We may use the User Content either alone or in conjunction with sketches, cartoons, captions, films, art work, textural matter, maps, materials written by us or others, or other photographs. You understand that you won’t have the right to approve how we use your User Content. We may give you credit for your User Content if KaHa uses it, however, you agree that such credit is not mandatory and your permission for Us to use your User Content is not contingent upon such credit being given or any fees being paid to you. Without limiting the foregoing clauses and subject to applicable laws, Your Content shall not be considered as Confidential Information.
(iii) You agree to be fully responsible for your own conduct and any User Content made available by You or Your account while using the Software and for any consequences thereof. You undertake that the User content uploaded, posted, transmitted or otherwise made available by You, shall not (a) be made available by You unless you are the owner of the rights or have the permission of the owner to post such content; (b) be an Objectionable User Content. KaHa prohibits posting of any Objectionable User Content.
(iv) You hereby release KaHa and its Associated Parties, their employees and officers, and any third party services that use your User Content from any and all claims, actions or proceedings of any kind, and from any and all damages, losses, costs and expenses, including reasonable attorney’s fees and expenses relating to or arising out of the use of your User Content as contemplated by the license given by you to Use in this Clause.
(v) You are alone responsible for complying with the applicable laws of Your land, including without limitation any export control laws for transmitting data outside of Your country and to Singapore and/or India, regarding the User Content made available by You and Your online conduct.
(vi) KaHa reserves the right to (a) determine, in its sole discretion, if any User Content is an Objectionable User Content; (b) remove any User Content (including Objectionable User Content) from all media as it deems necessary; (c) block or remove such users who have made available such Objectionable User Content; and (d) take any other action, including legal action, as it may deem necessary on such Objectionable User Content. We have a policy of zero tolerance towards any Objectional User Content.
(vii) If you notice any Objectionable User Content, please write to the customer support at firstname.lastname@example.org , and provide us the details of the objectionable content, relevant weblinks and other relevant details and we will take necessary action.
CONSENT TO COLLECTION AND USE OF DATA
7.1. To set up and provide the solutions and functionalities on the Software, KaHa collects and uses, Yours and of the persons nominated by You (if any), personal information, technical data and data concerning usage of the Software.
7.2. Children Data - KaHa does not collect children data knowingly. We request individuals under the age of 13 in the U.S. and under the age of 16 in the rest of the world to not provide personal data to Us. If we learn that we have collected personal data from a child under the age of 13 in the U.S. or under 16 in the rest of the world, we will take steps to delete the information as soon as possible.
This EULA is valid and effective until terminated. You may terminate this EULA and any document referred herein, by uninstalling the Software. Your license and other rights under this EULA will terminate automatically or otherwise cease to be eﬀective without notice from KaHa if you fail to comply with any term(s) of this EULA. Without limiting the foregoing, KaHa may terminate this EULA or suspend your use of the Software without prior notice, at any time and for any reason, including without limitation, (i) Your infringement of Intellectual Property Rights of KaHa or an Associated Party , (ii) Your conduct that KaHa believes is harmful to other users. Upon the termination of this EULA, You shall cease all use of the Software.
DISCLAIMER OF WARRANTIES, OTHER DISCLAIMERS
9.1. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, KAHA DOES NOT OFFER ANY EXPRESS OR IMPLIED WARRANTY ON THE SOFTWARE OR SERVICES PROVIDED BY IT. THE SOFTWARE IS PROVIDED TO YOU “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” AND KAHA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND KAHA DISCLAIMS ALL REPRESENTATIONS, GUARANTEES, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF ACCURACY, MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, MEETING YOUR REQUIREMENTS, TITLE, OR NON-INFRINGEMENT.
9.2. WITHOUT LIMITING THE FOREGOING, KAHA MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE OR THAT THE SOFTWARE OR THE RELATED SERVICES WILL BE FAILSAFE, OR UNINTERRUPTED OR BE AVAILABLE 24X7, OR FREE FROM ERRORS OR DEFECTS, OR MALICIOUS CODE FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED.
9.3. WE DO NOT REPRESENT, WARRANT OR GUARANTEE THAT THE SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY FITNESS OR OTHER GOALS. THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES. INSTALLATION OF THIS SOFTWARE MAY AFFECT THE AVAILABILITY AND USABILITY OF THIRD-PARTY SOFTWARE, APPLICATIONS OR THIRD-PARTY SERVICES.
9.4. KAHA DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES AS REGARDS THE ACCURACY OR COMPLETENESS OF THE DATA COLLECTED FROM AND/OR DISPLAYED IN THE SOFTWARE INCLUDING, WITHOUT LIMITATION, DATA FOR OR FROM SAFETY NOTIFICATION FEATURE, ELECTROCARDIOGRAM FEATURE, HEART RATE MONITORING FEATURE, WALLET TRACKING FEATURE, SLEEP TRACKING FEATURE, FITNESS FEATURE, OR ANY OTHER FEATURE AVAILABLE ON THE SOFTWARE.
9.5. NEITHER KAHA NOR ANY ASSOCIATED PARTY REPRESENTS, GUARANTEES OR WARRANTS, THAT THE SOFTWARE WILL WORK AS EXPECTED OR RESPOND IN A SITUATION OF DISTRESS OR THAT THE SOFTWARE WILL KEEP YOUR OR ANOTHER USER SAFE OR WILL ENSURE YOUR OR ANOTHER USER’S SAFETY. NEITHER KAHA NOR ANY OTHER PERSON ASSOCIATED WITH KAHA REPRESENTS, GUARANTEES OR WARRANTS THAT THE SOFTWARE WILL BE ACCESSIBLE, OR WILL OPERATE TO RESCUE YOU OR ANOTHER USER, OR AMELIORATE ANY SITUATION OR CIRCUMSTANCES THAT MAY ARISE OR NECESSITATE THE USE OF THE SOFTWARE.
9.6. YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, MONETARY LOSSES OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
9.7. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KAHA OR KAHA’S AUTHORIZED REPRESENTATIVE SHALL CREATE A GUARANTEE OR WARRANTY. SHOULD THE SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
9.8. KAHA DOES NOT ENDORSE THE GOALS, VIDEOS, RESOURCES, INFORMATION, TARGETS AND SUGGESTIONS (together referred to “SUGGESTIONS”) PROVIDED IN THE COURSE OF USE OF THE SOFTWARE AND ALL SUCH SUGGESTIONS ARE BASED ON GENERAL GUIDELINES AND DO NOT TAKE INTO ACCOUNT PERSONAL ASPECTS SUCH AS YOUR AGE, YOUR PHYSICAL CONDITION OR ANY SPECIFIC HEALTH ASPECTS PERTAINING TO YOU. PLEASE CONSULT YOUR DOCTOR AND OTHER RELEVANT PERSONS BEFORE TAKING ANY ACTION ON THE BASIS OF ANY SUGGESTIONS PROVIDED IN THE SOFTWARE . FURTHER, KAHA RECOMMENDS THAT YOU OBTAIN MEDICAL ADVICE AND ENSURE THAT YOU FOLLOW ALL PRESCRIBED SAFETY GUIDELINES BEFORE ENGAGING IN FITNESS OR OTHER PHYSICAL ACTIVITIES.
9.9. YOU UNDERSTAND AND ACKNOWLEDGE THAT THE SOFTWARE IS NOT A SUBSTITUTE OR REPLACEMENT TO YOUR SAFETY, FITNESS OR ANY OTHER SOFTWARE’S FEATURES RELATED SAFEGUARDS, AND YOU ARE RESPONSIBLE FOR IMPLEMENTING SAFEGUARDS APPROPRIATE TO YOUR NEEDS IN THE EVENT THAT AN ERROR/ISSUE IN THE SOFTWARE OCCURS AND LIMITS YOUR USAGE OF THE SOFTWARE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS AND USEFULNESS OF THE SOFTWARE AND SERVICES AND OTHER INFORMATION PROVIDED BY SOFTWARE OR GENERALLY AVAILABLE. WE DO NOT AUTHORISE ANYONE TO MAKE ANY WARRANTY ON OUR BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT.
9.10 Where a country/jurisdiction does not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, then the exclusions and limitations mentioned in this EULA shall be applied to You to the maximum extent permissible by law.
9.11 KaHa shall be absolved from all liabilities, if there is a Force Majeure event (or any other reason or event beyond the actual or reasonable control of KaHa), or the User breaches this EULA, or there are legal restraints in providing the Software to the User. A Force Majeure Event is any event that is beyond the actual or reasonable control of KaHa and includes without limitation, earthquakes, any natural event or disaster, any act of God, riots, war, hostilities, terrorism, strike, lockout or other industrial action, computer system malfunction or failure (regardless of cause), any third-party interference with a computer system, error, failure, interruption, delay or non-availability of any goods or services supplied to KaHa by a third party.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT, IN NO EVENT AND UNDER NO LEGAL THEORY, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, SHALL KAHA, ITS AFFILIATES, AGENTS OR PRINCIPALS BE LIABLE TO ANY PERSON FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, FOR PERSONAL INJURY, DEATH, CORRUPTION, LOSS OF ANY ECONOMIC INTERESTS, LOSS OF PROFITS OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SOFTWARE, EVEN IF KAHA HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES. KAHA’S AGGREGATE LIABILITY (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) TO YOU UNDER THIS EULA SHALL NOT EXCEED THE AMOUNT OF FEE PAID BY THE USER TO KAHA FOR USING THE SOFTWARE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR SINGAPORE DOLLARS TWO (OR ITS EQUIVALENT IN ANY OTHER CURRENCY), WHICHEVER IS LESS.
(i) Your access to, modification or use of the Software or its services;
(ii) Your breach of this EULA;
(iii) Your violation of law;
(iv) Your misrepresentation, impersonation, negligence, fraudulent, or wilful misconduct;
(v) any incorrect or incomplete information provided by You;
(vi) any hacking, release of malware or trojans by You or Your principal, agent or representative or any Person working under Your instructions; or
(vii) Your breach of confidentiality or sharing of Your username or passwords;
(viii) Your infringement of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity.
11.2. KAHA HAS NO RESPONSIBILITY FOR, AND YOU WILL INDEMNIFY AND HOLD HARMLESS KAHA FROM, ALL CLAIMS, SUITS, DEMANDS, AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING, ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE, OR EXPENSES (INCLUDING ATTORNEYS FEES) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, THOSE THAT (i) COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAILSAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, (ii) ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING SAFETY OR FITNESS OF A USER DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE OR THAT THE FAILURE OF THE SOFTWARE CAUSED ANY HARM TO AN INDIVIDUAL.
11.3. These obligations will survive any termination of the EULA. KaHa shall give a notice to You of any claim that arises out of this EULA, and such payment shall become due and payable upon receipt of the claim notice by You. Any delay in making the claim or giving the notice by KaHa does not relieve You of Your obligations under this clause.
12.1. Controlling Law and Severability
(i) All disputes arising out of or relating to this Agreement or its subject matter will be governed by the substantive laws (excluding its conflicts of law principles) of Singapore, for all other disputes and claims and the Courts of Singapore shall have exclusive jurisdiction to try all such disputes. This EULA shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. A person who is not a party to this EULA shall have no right under the Contracts (Rights of Third Parties) Act to enforce any of its terms.
(ii) All of the provisions of this Agreement shall be considered as separate terms. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this EULA shall continue in full force and eﬀect.
(iii) We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. For all claim proceeds in court we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
12.2. KaHa Trademarks – COVE® and COVENET® are registered trademarks of KaHa and any imitation or reproduction of the same without prior written permission from authorized representative of KaHa is prohibited. Imitation of registered trademarks is a punishable offence under laws.
12.3. Entire agreement, Waiver, Assignment and Governing Language
(i) This EULA, including all documents incorporated herein by reference, constitutes the entire agreement between You and KaHa relating to the Software and supersedes and cancels any prior, other or contemporaneous communication, understandings, representation or advertising whether oral or written, on the subjects herein. No terms or conditions of any other document of Yours will govern the transactions contemplated by this EULA. No amendment to or modification of this EULA will be binding on KaHa unless such modification is by a written addendum issued by a duly authorized representative of KaHa.
(ii) KaHa shall not be deemed to have waived off any of its rights under this EULA unless such waiver is in writing, signed by an authorised representative of KaHa, specifically referencing this EULA and the provision(s) herein to be waived. Delay or omission by KaHa in exercising or enforcing any right under this Agreement shall not operate or constitute a waiver of such right or provision. A waiver on any one occasion shall not be construed as a waiver of any right or remedy for any future occasion.
(iii) Where any translation of this EULA has been done for local requirements, then in the event of an ambiguity arising between the English and any non-English versions, this English version of EULA shall govern.
(iv) KaHa may assign this Agreement, in whole, at any time without Your prior consent.
All notices, requests, demands and determinations for KaHa under this Agreement (other than operational communications) shall be sent via electronic communication to email@example.com, with subject as “Attn: Legal Dept. – Legal Notice”.
12.5. Modification or Amendment of EULA
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