END USER LICENSE AGREEMENT
PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. BY ACCESSING OR USING THE KOLA GLOBAL LLC (“COMPANY”) CLOUD PLATFORM AND AFFILIATED SOFTWARE (“SERVICES”) YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS HEREIN, YOU MAY NOT ACCESS OR USE THE SERVICES.
I. The Services
1) The Services enable homebuilders in any country to offer financing to their customers and provide seamless customer service including financial underwriting, monthly payment processing, legal contracting, and ongoing customer care such as warranty claims processing (“Kola Home”). In addition, the Services provide integration for third-party investment funds to profit from the financing activities of the emerging market homebuilders and simultaneously provide social impact to the communities in which the homebuilders operate (“Kola Finance”). For the purpose of clarity, homebuilders will be utilizing Kola Home and financiers will be utilizing Kola Finance, each of which has its own separate dashboard and user interface within the Services.
2) “User” means any other authorized user of the Services. You may connect with and interact with Users of Kola Finance or Users of Kola Home in your sole discretion. Kola Home and Kola Finance are designed to work together. You may share data with Users of Kola Home and Kola Finance if you wish to do so through the Services.
3) The Services are a neutral platform. You are responsible for engaging and agreeing to terms with all other that you wish to engage with (just as if you had connected through any other methods). Company does not make any representations or warranties of any kind with respect to any User. Company is not liable for the acts, breaches or negligence of any User. Any dispute you may have with another User is between you and the respective User(s), and Company will not be a party to that dispute. However, in Company’s sole discretion, if you are unable to resolve a dispute with another User, Company may use commercially reasonable efforts to mediate and arrive at a mutually agreed upon resolution.
4) As part of the Services, you may receive emails, SMS texts, push notifications and phone calls from Company. By signing up for an Account, you agrees to receive these communications from Company, and as applicable, from other Users. All notices from Company intended for receipt by you shall be deemed delivered and effective when sent to your email address in your Account. You may opt out or change preferences in your Account settings pageto avoid receiving such messages. Opting out may prevent you from receiving certain messages regarding updates, improvements, or offers.
II. LICENSE
1) Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, non-transferable, revocable, license to access and use the functionality of the Services during the length of the applicable subscription term. Company reserves all rights not expressly granted herein in the Services and the Company Materials. “Company Materials” means all Updates, Company programs, manuals, files, reports, analysis, data, documentation and other materials and information provided through or as part of this Agreement.
2) Company may, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. Company may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you will continue to be bound by this Agreement.
3) Company will use commercially reasonable efforts to make the Services available pursuant to this Agreement except for (a) planned downtime; (b) emergency downtime; and (c) any unavailability caused by circumstances beyond our reasonable control. Company reserves the right to modify the Services from time to time and makes no guarantees as to the continuous availability of the Services or of any specific feature(s) or functionality(ies) of the Services.
4) Certain features of the Services may be subject to additional guidelines, terms, or rules, which will be posted on the Services in connection with such features. All additional guidelines, terms, or rules, and the Company privacy policy ("Privacy Policy"), are incorporated by reference into this Agreement and you are agreeing to accept and abide by them by using the Services.
III. SERVICE RULES
1) You agree to not access or use the Services for any purpose other than those specifically permitted. You will not use the Services to engage in activity that is illegal or deemed dangerous, harmful or otherwise inappropriate by Company in our sole discretion.
2) You shall be solely responsible for keeping your user name and password secret and confidential, and, for any communications or transactions that are made, using the same; and changing your user name and password if you believe that the same has been stolen or might otherwise be misused.
3) You acknowledge and agree that the Services and other Company Materials are licensed solely for the internal use of your organization in its ordinary course of business. You may not use the Services or other Company Materials for any other purposes, such as use them to provide services to other organizations, or integrate with other third-party solutions or services, or any other such circumstances without prior written authorization from Company. You agree to not: (a) grant access to any third party for any purpose whatsoever without the prior written consent of Company; (b) make the Services, in whole or in part, available to any other person, entity or business; (c) adapt, alter, modify, improve, translate or create derivative works of the Services; (d) access or use the Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes; (e) sell, sublicense, lease, permit, transfer, copy, reverse engineer, decompile or disassemble the Services, in whole or in part, or otherwise attempt to discover the source code to the software used in the Services; (f) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services; (g) remove any proprietary notices from the software or elsewhere on the Services; (h) abuse or misuse the Services, including gaining, facilitating or attempting to gain unauthorized access to the Services; or (i) modify, alter, integrate, combine the Services or associated software with any other software or services not provided or approved by us. You have and will obtain no rights to the Services except for the limited rights to use the Services expressly granted by this Agreement. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Company reserves all rights not expressly granted under this Agreement.
4) You further agree not to engage in any of the following prohibited activities: (i) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Services; (ii) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (iii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iv) uploading invalid data, viruses, worms, or other software agents through the Services; (v) collecting or harvesting any personally identifiable information, including account names, from the Services; (vi) using the Services for any commercial solicitation purposes; (vii) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, stealing or assuming and person’s identity (whether a real identity or nickname or alias), conducting fraud, hiding or attempting to hide your identity; (viii) interfering with the proper working of the Services; or (ix) accessing any content on the Services through any technology or means other than those provided or authorized by the Services. You will not use the Services to upload, download, display, perform, transmit, or distribute any User Content (defined below) that is, nor will you engage in any activities that are, infringing, libelous, defamatory, erroneous, misleading, deceptive, offensive, hateful, obscene, pornographic, abusive, threatening, tortious, in violation of any privacy or intellectual property rights, or otherwise unlawful. Company strictly prohibits any other use of any other content available through the Services, including but not limited to: any downloading, copying or other use of the content or the Services for purposes competitive to Company or for the benefit of another platform, marketplace, vendor or any third party.
IV. USER CONTENT
1) “User Content” means all information, photos, documents, messages, queries, and any other text, content, or data that a User submits, makes available or uploads to the Services. You are solely responsible for any and all of your User Content that you submit, make available, or publicize through the Services. You represent and warrants that all of your User Content is accurate and not misleading and is not in violation of any third-party rights. Other than your personal information, your User Content is not confidential or privileged, and you waive rights of privacy or publicity in connection with your User Content.
2) You will not use the Services to upload, download, display, perform, transmit, or distribute any User Content that is, nor will you engage in any activities that are deceptive, abusive, threatening, tortious, or to transmit malicious code, viruses, time bombs, Trojan horses, or similar mechanisms, scripts, agents, bots or programs. You further agree to not submit any User Content that contains Prohibited Materials. “Prohibited Materials” means, as determined in our sole discretion, (i) pornography or sexually explicit content, (ii) materials communicating hate or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, (iii) materials promoting illegal activities; (iv) profane or obscene language, (v) materials that infringe or violate the rights of others (including copyright, trademark, trade secret, privacy and/or publicity rights), (vi) defamatory, libelous, obscene, offensive or harmful material, (vii) materials that violate any Applicable Laws, or our written policies and procedures, and (xi) materials that otherwise violate this Agreement.
3) The Services may provide you with the ability to send email messages to other Users and non-users and to post messages. You must evaluate, and will bear all risks associated with, the use of or reliance on User Content obtained through the Services. Company is under no obligation to review any User Content (including any messages) posted on or sent through the Services; Company will not pre-screen or actively review User Content but Company may refuse or delete any User Content of which we become aware that fails to fulfill the purpose of the Services, is in breach of these Terms, is contrary to law, or is otherwise inappropriate in our discretion. Under no circumstances will Company be liable in any way for any User Content, including, but not limited to, liability for any errors, inaccuracies, or omissions therein, or for any loss or damage of any kind incurred as a result of the use thereof. Company will have no obligation or liability to you to maintain, store, or license any User Content.
4) User Content may be modified or adapted for purposes of transmission, display, or distribution over computer networks or any media formats, in order to conform to any requirements or limitations in working with such networks, services, devices or media. Company does not claim any ownership of your User Content submitted, posted, or displayed through the Services. You retain any and all ownership rights to the User Content that you submit and you are responsible for protecting those rights. Company reserves the right at all times to remove or refuse distribution of any User Content.
5) With respect to any User Content you submit or makes available through the Services (other than personal information), you grant to Company a perpetual, irrevocable, non-terminable, worldwide, royalty-free, non-exclusive, sub-licensable, right and license to use, copy, modify, create derivative works from, display and distribute, via any present or future medium, your User Content in order to provide the Services. Certain User Content (excluding any personal or Confidential Information) transmitted to certain parts of the Services, may be posted in public areas on the Services, including without limitation in a compilation format, and as such will be publicly visible and accessible.
V. ACCOUNTS
1) You will be required to create an account and provide accurate, current and complete information in connection with use of the Services (“Account”). You agree to maintain and promptly update Account information as necessary to maintain its accuracy. Company reserves the right to suspend or terminate access to and use of the Services, or any portion thereof, on the basis of inaccurate or incomplete Account information.
2) The Account gives you access to the Services and functionality that Company may establish and maintain from time to time and in Company’s sole discretion.
3) You are responsible for all activity that occurs when the Services are accessed through your Account, and must keep your account password secure. You must notify Company immediately of any breach of security or unauthorized use of your Account.
VI. OWNERSHIP
1) Company shall maintain sole and exclusive ownership of, and all right, title, and interest in and to, the Company Materials, including the Services, and all modifications and enhancements of the Services (including ownership of all copyrights and other intellectual property rights). For the purpose of clarity, nothing provided by Company under this Agreement, including the Company Materials or Services, is to be considered a “work for hire” and Company does not convey, transfer or assign any right, title and interest it may have now or in the future acquire, including but not limited to all intellectual property rights, to you.
2) Company may use any reports, comments, ratings, reviews and suggestions in any form regarding the Services that you provide to Company (collectively, the “Feedback”). You grant Company a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback.
VII. CONFIDENTIALITY
1) “Confidential Information” shall mean the Services and all other information disclosed to you that Company characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain; (c) is disclosed to you by a third party as a matter of right and without restriction on disclosure; or (d) is independently developed by you without access to the Confidential Information. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this EULA, provided, however, that any trade secrets shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of Company. You shall not use any Confidential Information other than in the course of the activities permitted hereunder. You shall notify Company in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this EULA, and will cooperate with Company in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify Company prior to such disclosure to allow Company an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with Company in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
2) You understand and agree that the remedy of damages would be inadequate to compensate Company for any breach by you of your obligations set out under this Section. Accordingly, you agree that, in addition to any other remedies that may be available, Company shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by you, without limiting any other rights and remedies to which the Company may be entitled to at law, in equity or under this Agreement.
VIII. INDEMNIFICATION
1) You will indemnify, defend and hold harmless Company, and its directors, officers, employees, agents and representatives from and against any and all losses, damages, demands, claims, costs, penalties, injuries, interest, or expenses (including without limitation reasonable attorney fees and costs) (“Losses”) howsoever caused, arising out of or relating to (i) your use or misuse of the Services or any portion thereof; (ii) your breach or alleged breach of any representations, warranties, obligations or responsibilities contained herein; (iii) your modification of the Services or any information contained therein, integration, alteration or the combination of all or part of the Services with any other software, program, product or device that is not expressly permitted under this Agreement; (iv) your violation of federal, state or local laws, rules or regulations; or (v) the actions of any person gaining access to the Services through your account.
IX. DISCLAIMERS
1) Except as otherwise explicitly stated herein, you understand and agree that the Company Materials and Services and information contained therein or provided therewith are provided on an “as is” and “as available” basis only, without warranty of any kind, and all express, implied or statutory warranties, conditions, representations, including but not limited to, the implied warranties of title, merchantability, fitness for a particular purpose, accuracy, timeliness, completeness, adequacy and non-infringement or warranty arising out of course of performance, course of dealing or usage or trade are excluded by Company. Furthermore, and without limitation, Company does not warrant that: A) information provided by the Services is correct, accurate, reliable or complete; B) the function of the Services will be uninterrupted or error-free; or C) the use of the Services will result in any particular results. You are responsible for any and all acts or omissions taken or made in reliance on the Services or the information contained therein, including inaccurate or incomplete information.
2) Company does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by another User or third party through the Services or any hyperlinked website or service, and Company will not be a party to or in any way monitor any transaction between you and other Users or providers of such third-party products or services.
3) Company may alter, suspend, add to, or discontinue the Services in whole or in part at any time for any reason, without notice or cost. company assumes no responsibility for your ability to (or any costs or fees associated with your ability to) obtain access to the Services. Company does not assume any liability for the failure to store or maintain any of your materials, communications, Account information, or personal settings. By having access to the Services, you agree that Company and partners may place advertisements on the services. The Services may become unavailable due to maintenance or malfunction of computer equipment, servers, or other reasons.
4) THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
X. LIMITATION OF LIABILITY
1) If you are dissatisfied with the Services, your sole and exclusive remedy is to discontinue using the Services. It is expressly agreed that in no event shall Company, or any officers, directors, stockholders, agents, and employees, be liable for any special, direct, indirect, consequential, or exemplary damages, including but not limited to, loss of profits or revenues, loss of use, or loss of information or data, whether a claim for any such liability or damages is premised upon breach of contract, breach of warranty, negligence, strict liability, or any other theory of liability, even if Company has been apprised of the possibility or likelihood of such damages occurring. Company’s aggregate liability under this Agreement, regardless of theory of liability, shall be limited to $100.
2) Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
XI. MISCELLANEOUS
1) Entire Agreement: This Agreement constitutes the entire agreement between the Parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement.
2) Governing Law and Dispute Resolution: This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California without giving effect to any conflicts of laws principles that require the application of the law of a different state. In the event of a dispute, the parties will work together in good faith to try to reach resolution. In the event that the parties are unable to resolve a dispute after sixty (60) days, the Parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief which may be brought in federal or state courts situated in Alameda County, California arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration. The arbitration will be conducted in Alameda County, California, under the auspices of the American Arbitration Association (“AAA”), in accordance with the AAA’s Commercial Arbitration Rules then in effect. The arbitrator, witness, party representative, counsel, expert or staff may participate by video conference where such participant (when participating) can be heard and seen (i.e., Zoom). The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The prevailing Party in any dispute under this Agreement shall be entitled to recover all costs actually incurred in connection therewith, including, without limitation, reasonable attorneys’ fees.
3) Export Control Law. You agree to abide by all applicable export control laws, rules, and regulations applicable to the Services. You represent and warrants that you are not located in or under the control of or a resident of any country, person, or entity prohibited to receive the Services, software or documentation due to export restrictions and that you will not export, re-export, transfer, or permit the use of the Services, software or documentation, in whole or in part, to or in any of such countries or to any of such persons or entities.
4) Waivers: All waivers by Company will be effective only if in writing. Any waiver or failure by Company to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
5) Force Majeure: Company shall not be liable any delay or failure to perform its obligations hereunder that arises, in whole or in part, from any cause or causes beyond the reasonable control of Company.
6) Notices: Any notice to you may be provided by email to the address that you provided in your Account.
7) Survival: The provisions of this Agreement that by their nature contemplate survival of this Agreement shall survive any termination or expiration of this Agreement.
8) Publicity: You may not use Company’s names, symbols, trademarks, or other marks without the Company’s prior written consent.
9) Assignment: Neither the rights nor the obligations arising under this Agreement are assignable by you, and any such attempted assignment shall be void and without effect.
