TOS

INDUSTRIOUS KRAKEN TERMS OF SERVICE

Thank you for using Kraken! By using our services, you agree to these terms. This is a legal agreement between you and/or your organization (collectively “you”) and Industrious Kraken LLC (“Industrious Kraken”). You acknowledge that you have read and understand this agreement, and that you are authorized to enter into this agreement on behalf of your organization.

GRANT OF LICENSE.
Industrious Kraken LLC (Industrious Kraken) grants you a non-exclusive license to use Industrious Kraken’s Software (the “Software”) solely for your internal use in accordance with the terms and conditions of this Agreement.

COPYRIGHTS AND TRADE SECRET RIGHTS.
Industrious Kraken retains all right, title and interest in and to the Software and the related documentation and to any copies made thereof including but not limited to all copyrights and trade secret rights.

OTHER RESTRICTIONS.
The Software (including but not limited to the source code thereof) is the proprietary and confidential information of Industrious Kraken. You agree to safeguard the Software by exercising a degree of care which is at least as protective as what you use in safeguarding the confidentiality of your own proprietary information, but no less than a reasonable degree of care under the circumstances. Except as, and then only to the extent expressly permitted in this Agreement, you may not use, sublicense, assign, transfer, disclose, alter, duplicate, translate, decompile, disassemble, reverse engineer, create derivative works from, or recreate the Software, in whole or in part, by reference to the original.

TERM AND TERMINATION.
The Agreement will continue in effect until terminated by either party, for any reason, upon thirty (30) days written notice to the other or upon your failure to remit payment timely, in which case Industrious Kraken may terminate this Agreement immediately. Termination of this Agreement for any reason shall not affect any right or obligation of either party accrued at the time of termination. Nor shall it affect the limitations of warranties and liabilities contained herein, which shall continue in full force and effect. Additionally, the Agreement will terminate if you fail to comply with any term or condition of this Agreement.

WARRANTY.
Industrious Kraken is selling the Software and documentation “as-is” with no express and or implied warranty of any kind. Licensee also acknowledges that the software is being sold without any support whatsoever of any kind from Industrious Kraken, unless otherwise agreed to in a separate written contract.

EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING PARAGRAPH, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED TO YOU WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES OF QUALITY OR PERFORMANCE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.

Your exclusive remedy with respect to the Software and this License Agreement will be limited to, at Industrious Kraken’s sole option, to replace any defective Software or refund the monthly fee paid in the most recent billing term for the Software.

LIMITATION OF LIABILITY.
INDUSTRIOUS KRAKEN’S AND ITS AFFILIATES’ CUMULATIVE LIABILITY TO YOU (OR ANY OTHER PARTY WHATSOEVER) FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THE SOFTWARE, THE USE OR THE INABILITY TO USE THE SOFTWARE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE LICENSE FEES PAID TO INDUSTRIOUS KRAKEN FOR SUCH SOFTWARE. LICENSEE WILL BE SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF ITS DATA. IN NO EVENT SHALL INDUSTRIOUS KRAKEN OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, EVEN IF INDUSTRIOUS KRAKEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITIES FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

U.S. GOVERNMENT RESTRICTED RIGHTS.
If any license described in this Agreement is acquired under a U.S. Government contract, the Government acknowledges the Software to be “commercial computer software”, subject to restricted rights (including, where applicable, Industrious Kraken’s customary license rights) on use, duplication or disclosure by the U.S. Government as set forth in subparagraphs (b)(3)(ii) and (c)(1)(ii) of 252.227-7013 of the DFARS for Department of Defense contracts, 18-52.227-19 of the NASA Supplement to the FAR for NASA contracts, and 52.227-19(a)-(d) of the FAR for other agency contracts. All technical data relating to Software is subject to limited rights so long as this Agreement is in effect. Industrious Kraken reserves all unpublished rights under U.S. copyright laws. Contractor is Industrious Kraken, LLC 5406 Hoover Blvd., No. 10, Tampa, Florida 33634.

PERFORMANCE.
Neither party shall be liable for any delays in the performance of any of its obligations hereunder due to causes beyond its reasonable control, including, without limitation, fire, strike, war, riots, acts of any civil or military authority, acts of God, judicial action, unavailability or shortages of labor, materials or equipment, failure or delays in delivery of vendors and suppliers or delays in transportation; provided that nothing herein shall excuse delays in the payment of any of the fees or charges due under this Agreement.

COUNTRY OF ORIGIN.
You certify to Industrious Kraken that you shall not knowingly transfer, directly or indirectly, any restricted Products or technical data received from Industrious Kraken, or the direct product of such data, to any country or other destination subject to export restrictions under U.S. law, unless prior written authorization is obtained from Industrious Kraken and the appropriate U.S. agency. Industrious Kraken reserves all unpublished rights under U.S. copyright laws. Industrious Kraken shall not be subject to any flowdown provisions required by a governmental customer unless agreed to by Industrious Kraken in writing.

NO TRANSFER OR ASSIGNMENT.
All licenses and rights granted to you hereunder shall not be transferable or assignable by you, whether voluntarily or by operation of law, without Industrious Kraken’s prior written consent. This Agreement shall be binding upon and inure to the benefit of and be enforceable by, the parties and their respective successors and permitted assigns. Any assignment in violation of these terms shall be void.

NOTICE.
All notices under this Agreement shall be in writing in the English language and shall be considered served if delivered in person or sent by certified or registered mail, return receipt requested, to the party at the address shown on the first page of this Agreement or at such other address as shall be provided by the party in a written notice to the other party.

CURRENCY.
All fees and other monetary amounts referenced in or payable under this Agreement shall be in United States Dollars. Each party undertakes to obtain from its respective government whatever authorization, approvals, licenses or permits are required in order for it to perform all its obligations under this Agreement in accordance with its terms.

MODIFICATION.
We may revise these terms periodically due to changes in law, regulatory requirements, or improvements and changes to our services. If an update affects your legal rights, well notify you by electronic mail or via an in-product notification. We will always provide at least 30 days notice of a change to these terms. If you do not agree with changes made to these terms, you should cancel your account before they become effective. Where applicable, we will refund pro-rata any prepaid services.

GOVERNING LAW.
The validity of this Agreement and the rights, obligations and relations of the parties hereunder shall be construed and determined under and in accordance with the laws of the State of Florida, therein as applied to contracts to be performed in Florida between Florida residents; provided, however, that if any provision of this Agreement is determined by a court of competent jurisdiction to be in violation of any applicable law or otherwise invalid or unenforceable, such provision shall to such extent as it shall be determined to be illegal, invalid or unenforceable under such law be deemed null and void, but this Agreement shall otherwise remain in full force. If any dispute arising out of this Agreement is litigated between the parties, the prevailing party shall be entitled to recover its reasonable attorneys’ fees in addition to any other relief to which it may be entitled.

VENUE.
Suit to enforce any provision of this Agreement, or any right, remedy or other matter arising therefrom, will be brought exclusively in the state or federal courts located in Hillsborough County, Florida.


DISPUTE RESOLUTION.
The parties agree to attempt initially to resolve all claims, disputes or controversies arising under, out of or in connection with this Agreement by conducting good faith negotiations within ten (10) business days from the day one party provides written notice to the other of such claim or dispute. If the parties are unable to settle the matter between themselves, the parties shall attempt to resolve the dispute through non-binding mediation, to be scheduled within sixty (60) days of the parties’ mutual agreement that informal settlement negotiations have failed. Should the mediation fail to resolve the dispute, the parties may seek resolution of their dispute before the federal or state courts located in Hillsborough County, Florida. THE PARTIES HEREBY WAIVE ANY AND ALL RIGHT TO A JURY TRIAL.

Version: IKTOS_2021_01 Effective Jan 1, 2021