End User License Agreement
Kindwell Inc. (“Kindwell”) is willing to sell or provide to the entity, individual, or other person who accepts and agrees to this End User License Agreement (this “EULA”) or on whose behalf an employee, agent, or contractor of such entity, individual, or other person accepts and agrees to this EULA (such entity, individual, or other person, “Customer”) a product or products includes proprietary software and other technology (the “Product(s)”) and/or services related to the Product(s) (which may include a license to download from Kindwell and use an app with Product and/or Internet-accessible cloud-based services for use with the Product(s)) (the “Services”), in any case as the Product(s) and/or the Services are set forth in the invoice or other contractual document issued by or expressly agreed to by Kindwell (the “Other Agreements”).
Customer agrees that Customer’s acceptance of this EULA is a condition precedent for Customer’s purchase and use of the Product and the Services or any part thereof. Kindwell and Customer are each, a “Party” and collectively, the “Parties”.
Acceptance. By accepting this EULA, a legally binding contract and agreement is created between Kindwell and Customer under the terms, conditions, and provisions set forth in this EULA. Customer’s acceptance to this EULA may be express or implied, including by submitting or accepting a purchase order or invoice including this EULA by link or reference. Upon acceptance of this EULA, Customer also confirms to have reviewed and to understand all terms, conditions, and provisions of this EULA, and that Customer had the opportunity to seek legal assistance, at its cost, with regard to this EULA.
Amendments. This EULA, in its current form, is set forth at https://kindwell.net/license-agreement-eula. Kindwell may modify, amend, change, and alter this EULA or any provision herein at any time, which modification, amendment, change, and alteration shall be effective at the moment at which it is uploaded to or incorporated into this EULA as set forth at https://kindwell.net/license-agreement-eula. Any such modification, amendment, change, and alteration shall be effective for Customer at and as of the time that Customer accepts and agrees to such modification, amendment, change, or alteration or this EULA including such modification, amendment, change, or alteration.
1. Limited License to Use of Technology. In consideration for, and subject to, payment of the price for Product and/or Services as set forth in the other contractual agreements, Kindwell grants Customer the non-exclusive, non-assignable, non-transferable, and non-sublicensable limited right and license to (i) execute, use, and operate the processes, methods, functions, works, inventions, operations, software, firmware, specifications, data, information, and technology (“Technology”) included in the Product(s) only as included in and for the purpose of the use of the Product(s) intended by Kindwell, (ii) if Customer purchases from Kindwell under the Other Agreements any Services, the right to use any Technology included in or made available by Kindwell for or with such Services solely as part of and for the purpose of the use of the Services intended by Kindwell and in accordance with such Other Agreements, and (iii) use any documentation delivered, provided, or made available by Kindwell to Customer for use with the Product(s) and/or the Services (“Documentation”) for the permitted use of the Product(s) and/or the Services. The license hereunder is limited to execution and use of the Technology as included in the Product(s) solely in those countries and other territories as permitted under U.S. (including subject to Section 17 of this EULA) and other applicable law, excluding any country and territory in which use or keeping the Product(s) is not permitted. Any sale or transfer or lease of the Product(s) to Customer under or pursuant to the Other Agreements is limited to sale of, transfer of title to, or lease of the hardware of the Product(s), as applicable, and does not include any sale, transfer, or lease of title to or ownership of any of the Technology or intellectual property rights therein or thereto.
2. Modification of Technology. Kindwell may at any time (if, as, and when it decides to do so in its sole discretion) make, install, or implement any update, upgrade, error correction, change, addition, or modification in or for or to any Technology or Documentation (each, a “Modification”) with or without notice to Customer. Following a Modification to Technology, the license under this EULA to such Technology or Documentation is limited to such Technology or Documentation including such Modification. Customer agrees that, if any Modification is to be implemented in Technology in the Product(s), Customer’s giving Kindwell prompt access necessary to implement such Modification in the Product(s) is a condition for Customer’s continued use of such Technology under this EULA. Kindwell shall have no liability whatsoever with regard to any Technology for which a Modification is not implemented as a result of Kindwell’s not having access to the Product(s) for such purpose.
3. Limitations and Restrictions. Customer does not have any right or license to, and Customer will not and will ensure that no third party with access to the Product(s) or Services as a result of Customer does, directly or indirectly, in any manner whatsoever: (i) disassemble, open, or break any seal on the Product(s), or access other than as expressly permitted by Kindwell to Customer for the Product(s) ordinary use; (ii) access, decompile, reverse engineer, remove, copy, reproduce, create any Modification, or create any derivative work, improvement, or derivation of any Technology or Documentation of Kindwell or its corporate affiliates; (iii) remove, obscure, obliterate, relabel, modify, change, alter, cover up, or make fully or partially illegible any proprietary notice (including any patent, copyright, or trademark notice), marking, brand, label, warnings, instructions, or other information on the Product(s); (iv) access, use, or operate the Product(s) or any Technology in connection with any device, program, or service designed to circumvent any technological measures to control access to, or the content file or other work protected by copyright or other IP Rights; (v) take any action to circumvent, manipulate, change or defeat any download or copy protections, firewalls, virus, spam or similar screening, or security or content usage rules, programs or features in connection with the Product(s) or any Technology; (vi) assign, transfer, sub-license, pledge, grant any lien or security interest in, or encumber any right or license under this EULA; (vii) attempt to do any of the foregoing; or (viii) instigate, cause, permit, or induce any other person to do any of the foregoing or assist, support, or enable any other person’s doing any of the foregoing. Any of the foregoing will be deemed to be an infringement of an intellectual property right of Kindwell if the foregoing would be an intellectual property infringement without this EULA.
4. Data. The use or operation of the Product(s) and the use of the Services will generate data and information, including measurements, analytics, location information, use information, status, error information, and other data and information of any kind (“Data”). Any Data that are specific to Customer or Customer’s use of the Product(s) and/or the Services, including the data of any measurements or analytics of any substance, environment, location, or other condition for which Customer uses the Product(s) (“Customer Data”) shall belong to Customer, provided that Kindwell and it corporate affiliates shall have, and Customer hereby grants to Kindwell and its corporate affiliates, a non-exclusive, worldwide, transferable, assignable, directly and indirectly sublicensable, perpetual, irrevocable, non-terminable right and license, free of any royalty, fee, or other payment or payment obligation to or for Customer to collect, store, process, analyze, reproduce, modify, aggregate, use, and utilize any Customer Data (including to improve any Technology or enable any Technology to improve or be improved). Kindwell shall own, and Customer shall have no right, title, interest, license, lien, claim, or expectation in or to any results from (including any Technology resulting from) any such collection, storage, processing, analysis, reproduction, modification, aggregation, use, or utilization, or any IP Rights in or to or arising from any such results or Technology. Other than Customer Data, Kindwell shall solely own, and retain sole ownership of, all Data and all IP Rights in and to such Data. Customer is solely responsible for management of Customer Data, including but not limited to back-up and restoration of Customer Data. CUSTOMER AGREES THAT Kindwell IS NOT RESPONSIBLE FOR THE LOSS OF ANY CUSTOMER DATA OR FOR THE BACK-UP OR RESTORATION OF ANY CUSTOMER DATA, REGARDLESS OF WHERE SUCH CUSTOMER DATA aRE STORED. Upon the termination of any Services, Kindwell may delete all Customer Data kept for Customer in the course of providing the Services. Kindwell has no obligation to archive any Customer Data. Customer expressly assumes all risks of all Customer Data.
5. Ownership. Kindwell and/or its corporate affiliates solely own, and shall retain, all rights, title, and interest in and to any and all Technology comprising or included in, or related to, the Product(s) or the Services, any and all Technology provided or made available by or for Kindwell, any and all Technology resulting from any Data or use or utilization of any Data in connection with the Product(s), and any and all Technology developed, designed, created, acquired, or generated by or for Kindwell or any of its corporate affiliates, and all Documentation, and all Modifications, improvements, derivative works, and derivatives of or to or from or based on any of the foregoing, and all patents and patent applications (whether utility, design, or otherwise, provisionals, continuations, continuations-in-part, divisionals, reissues, reexaminations, extensions, and priority rights related thereto), utility models, copyrights, mask work rights, trademarks, service marks, trade dress, tradenames designs, domain names, and logos, and trade secrets, and other intellectual and proprietary rights anywhere in the world (collectively, “IP Rights”) in and to any of the foregoing Technology, Documentation, Modifications, improvements, derivative works, or derivatives, and any other IP Rights owned or held by Kindwell or any of its corporate affiliates (individually and collectively, “Kindwell IP”). Nothing in this EULA or any performance of this EULA constitutes, or shall be interpreted or construed to constitute, any assignment, transfer or conveyance of any right, title or interest, license (except as expressly set forth in Section 1 of this EULA), lien, or claim in or to or under any Kindwell IP, whether expressly, implicitly, or otherwise. If Customer, any of its corporate affiliates, or any of its or its affiliates’ officers, directors, employees, agents, or contractors (“Customer Personnel”) owns, has, or acquires, or may own, have, or acquire, any rights, title, or interest, lien, claim, or such license in or to any Kindwell IP, Customer agrees to assign and hereby assigns, and agrees to cause its affiliates and Customer Personnel to assign, all such rights, title, interest, lien, claim, and license to Kindwell, without payment or payment obligation. Company shall, and shall cause its affiliates and Customer Personnel to, execute any document or take any reasonable action as requested by Kindwell to effect any such assignment.
6. No Challenge. Customer warrants, represents, and covenants that it will not, directly or indirectly, challenge, or allege a lack of, (i) the sole ownership or rights of Kindwell or its corporate affiliates in or to any Kindwell IP, or (ii) any invalidity or unenforceability of any Kindwell IP, or (iii) allege, present, or assert any ownership, exclusive right, or (other than as granted in this EULA) non-exclusive in or to or under any Kindwell IP.
7. Use. Customer warrants, represents, and covenants that Customer will not, and that no Customer Personnel will, use the Product(s), the Services, or any Technology in violation of any applicable law or for any purpose that may violate any applicable law, Section 3 of this EULA, or any other term, condition, or provision of this EULA, or infringe any IP Right or misappropriate any Technology of any other person, or in any manner or way, or for any purpose, other than the manner, way, and purpose as or for which the Product(s) are delivered to Customer by Kindwell. Customer is fully responsible and liable for all conducts, acts, and omission of all Customer Personnel. Any conduct, act, or omission of any Customer Personnel that would be a breach of this EULA if it were conduct, act, or omission of Customer shall be deemed to be a breach of this EULA by Customer.
8. Third Party Technology. The Product(s) or the Services may include or use Technology of a third party. The license under this EULA extends to any such third party Technology only if and to the extent, and for as long as, Kindwell has the right to grant the sublicense necessary for such license. If such third party Technology is subject to additional terms and conditions, Customer is required, upon notice by Kindwell, to agree to those terms and conditions in order to continue to use the Product(s) and/or the Services.
9. U.S. Government Restricted Rights. If and to the extent the Product(s) or the Services are provided to the U.S. Government, Customer agrees that the Technology qualifies as limited rights data and/or restricted computer software under Federal Acquisition Regulations (“FAR”) and is provided to the U.S. Government only with restricted rights and limited rights. Use, reproduction, or disclosure by the U.S. Government is subject to the restrictions herein and as set forth in FAR Sections 52.227-14 and 52.227-19 and the applicable provisions of Part 227 of the Defense FAR Supplement, as amended.
10. Warranties and Representations. Customer warrants and represents that it has the right and authority to accept and enter into this EULA and to perform all of its obligations as set forth in this EULA. Kindwell warrants and represents that it has the right and authority to accept and enter into this EULA and to perform all of its obligations as set forth in this EULA. Kindwell makes no warranty or representation with regard to the Software or any part thereof, including, without limitation, any Modification or Documentation. ALL TECHNOLOGY, DOCUMENTATION, AND ANY PART THEREOF (AND THE PRODUCT(S) AND SERVICES OTHER THAN ARE SET FORTH EXPRESSLY IN WRITING IN THE OTHER AGREEMENTS) ARE LICENSED, DELIVERED, PROVIDED, AND MADE AVAILABLE “AS IS” AND “WHERE IS,” AND KINDWELL MAKES NO REPRESENTATION, WARRANTY, COVENANT, OR CONDITION OF ANY KIND RELATED TO ANY TECHNOLOGY, DOCUMENTATION, THE PRODUCT(S), AND THE SERVICES, AND ANY PART THEREOF, WHETHER TO CUSTOMER OR ANY OTHER PERSON, WHETHER VERBAL, WRITTEN, EXPRESSLY, OR IMPLICITLY, AND KINDWELL HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, AND STATUTORY, OF ANY KIND FOR OR RELATED TO OR REGARDING ANY TECHNOLOGY, DOCUMENTATION, THE PRODUCT(S), AND THE SERVICES, AND ANY PART THEREOF, AND OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA, INCLUDING, WITHOUT LIMITATION, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE, WORKMANSHIP, ACCURACY, RELIABILITY, INTEROPERABILITY WITH OTHER SOFTWARE OR ANY HARDWARE, SECURITY, FREEDOM FROM ERROR, AND QUIET ENJOYMENT, AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS ARISING AS A RESULT OF CUSTOM, USAGE OR TRADE AND THOSE ARISING UNDER STATUTE.
11. LIMITATION OF LIABILITY. IN NO EVENT WILL KINDWELL OR ANY OF ITS CORPORATE AFFILIATES BE LIABLE TO CUSTOMER, ANY AFFILIATE OF CUSTOMER, OR ANY CUSTOMER PERSONNEL OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, LIQUIDATED, EXEMPLARY, OR INDIRECT DAMAGES (INCLUDING LOST PROFITS, BUSINESS INTERRUPTION, AND DISCLOSURE OR LOSS OF INFORMATION, DATA, INCOME, REVENUE, GOODWILL OR ANTICIPATED SAVINGS) EVEN IF KINDWELL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE (INCLUDING FOR OR RELATED TO OR REGARDING ANY TECHNOLOGY, DOCUMENTATION, THE PRODUCT(S), OR THE SERVICES, OR ANY PART THEREOF, OR OTHERWISE UNDER OR IN CONNECTION WITH THIS EULA). FURTHER, IN NO EVENT WILL KINDWELL’S TOTAL CUMULATIVE LIABILITY NOT EXCLUDED UNDER THE PRECEDING SENTENCE OF THIS SECTION HEREUNDER (WHETHER SUCH LIABILITY IS NOT EXCLUDED UNDER THE IMMEDIATELY PRECEDING PROVISIONS OF THIS SECTION OR BECAUSE SUCH LIABILITY IS NOT EXCLUDABLE UNDER APPLICABLE LAW OR FOR ANY OTHER REASON), FROM ALL CAUSES OF ACTION OF ANY KIND, EXCEED THE TOTAL AMOUNT OF THE PRICE PAID TO AND RECEIVED BY KINDWELL FROM CUSTOMER FOR THE PRODUCT(S) FOR WHICH CUSTOMER HAS ACCEPTED THIS EULA SPECIFICALLY. THIS LIMITATION AND EXCLUSION APPLIES IRRESPECTIVE OF THE CAUSE OF ACTION, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF WARRANTY, MISREPRESENTATION OR ANY OTHER LEGAL THEORY AND WILL SURVIVE A FUNDAMENTAL BREACH.
12. Indemnity. Customer hereby agrees to defend, indemnify, and hold harmless Kindwell, all corporate affiliates of Kindwell, and all officers, directors, employees, agents, and contractors of Kindwell or its corporate affiliates from and against any claim, action, suit, litigation, demand, allegation, arbitration, proceeding, judgment, order, damages, loss, liability, injury, costs, expenses (including, without limitation, reasonable attorneys’ fees and witness and other defense costs), settlement, and other payment obligation of any Indemnitee arising from or in connection with or related to: (i) any breach of this EULA by Customer or any Customer Personnel, (ii) any use or application of the Product(s) or the Services, or any Technology therein, or the Documentation, (iii) any negligence or willful misconduct, or any violation of law or right or property of any third party, of or by Customer or any Customer Personnel.
13. Legal Restrictions. Some jurisdictions do not allow the conditions, limitations, disclaimer, or exclusion of implied warranties, representations, or conditions, so some of the disclaimers and exclusions in Sections 9 and/or 10 of this EULA may not apply to Customer. In such case, the conditions, limitations, disclaimer, or exclusion of implied warranties, representations, or conditions shall not be invalidated or nullified but be revised and remain valid and enforceable such that they are effective to the greatest extent as permitted under applicable law.
14. Basis of the Bargain. Customer agrees and acknowledges that Kindwell is willing to sell, and sells and provides the Product(s) and Services under the terms thereof, in reliance on the limited warranties, warranty disclaimers, limitations and exclusions of liability, and indemnity set forth herein, that the same reflect an agreed-to allocation of risk between the Parties (including the risk that a remedy may fail of its essential purpose and cause consequential loss), and that the same forms an essential basis of the bargain between the parties.
15. Termination. Kindwell may terminate this EULA, and the license and right hereunder, by written notice of termination to Customer if (i) Customer breaches any term, condition, or provision of this EULA; or (ii) Kindwell has received a notice, demand, claim, or legal action, or Kindwell has the reasonable expectation of any notice, claim, or legal action, asserting that any of the Product(s), the Services, or any Technology therein infringes another’s IP Rights or misappropriates another’s Technology.
16. Upon Termination. Upon termination of this EULA under Section 14, the licenses and rights under Section 1, and the provision of the Services, will immediately terminate, and Kindwell may either disable any Technology in the Product(s) and the Services remotely or recover and repossess the Product(s). Customer hereby expressly agrees to the right of Kindwell to disable such Technology and to repossess and recover the Product(s), and Customer agrees, as decided by Kindwell in its sole discretion, either to deliver to Kindwell, or to make available the Product(s) available to Kindwell for repossession and recovery during ordinary business hours. The terms, conditions, and provisions in Sections 2-14 and 17-27 of this EULA, and this Section 16, shall survive any termination of this EULA.
17. Legal Compliance; Export and Trade Restrictions. In the exercise of the rights and the performance of the obligations of Customer under this EULA or any Other Agreement, Customer shall comply with all applicable law, regulations, and governmental orders, including, without limitation, all licenses, permits, authorizations, approvals, government filings, and registrations necessary or appropriate for the exercise of its rights and the performance of its obligations hereunder. In addition, without limiting the generality of the foregoing, the Product(s), any Technology, and/or any Services is or may be subject to export controls, including those under the laws and regulations of the United States, such as the Export Administration Regulations, 15 C.F.R. Parts 730-774. In the exercise of the rights, and the performance of the obligations under this EULA or any Other Agreement, Customer shall comply strictly with all such export control laws and regulations applicable to the Product(s), the Technology, the Services, or any part thereof or any information related thereto, and shall not export, re-export, transfer, divert or disclose the Product(s), the Technology, the Services, or any part thereof or any information related thereto, directly or indirectly, to any destination, end-use, or end-user restricted or prohibited under such export controls. Customer's rights and Kindwell's performance of its obligations under this EULA and any Other Agreement is subject to Customer's its own continued compliance with applicable U.S. and other applicable export controls, as well as with applicable sanctions laws, rules and regulations, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control prohibiting or restricting dealings with certain targeted territories and parties (collectively, the “Trade Restrictions”). Any refusal or failure by Kindwell to perform, in whole or in part, its obligations or refuse any right of Customer under this EULA or any Other Agreement on account of compliance with any Trade Restrictions will not constitute a breach of any obligation under this EULA or any Other Agreement by Kindwell, and Customer hereby waives any and all claim against Kindwell for any legal recourse, including injunctive or declarative relief, loss, cost or expense, including consequential damages, that Customer may have, incur, or be subject to by virtue of such refusal or cancellation.
18. Injunctive Relief. Customer agrees that damages alone may be an insufficient remedy for violations of the terms of this EULA and that Kindwell may suffer irreparable damage as a result of such a violation. Accordingly, Kindwell will be entitled, in the event of a breach or threatened breach of this EULA, to seek injunctive relief (or equivalent relief available under the law of the jurisdiction where Kindwell seeks such relief) to enforce the provisions of this EULA without posting a bond. Injunctive (or such equivalent) relief shall be in addition to any and all other rights or remedies available to Kindwell or such licensor, including, but not limited to, damages or other relief or remedies for such violation. Assertion or the failure to assert injunctive (or such equivalent) relief shall not constitute a waiver of any such other rights or remedies. In the event it is necessary for Kindwell to institute legal proceedings to enforce this EULA, Kindwell will be entitled to recover attorneys’ fees and costs incurred by Kindwell in such proceedings if it prevails in such proceedings.
19. Force Majeure. Customer relieves Kindwell of any obligation or liability under this EULA for any breach, default, non-performance, or late performance as a result of any unforeseeable circumstances beyond its reasonable control, including labor disputes, strikes, lockouts, war, riot, insurrection, epidemic, pandemic (including but not limited to COVID-19 and other COVIDs), Internet virus attack, Internet failure, supplier failure, act of God, or governmental action.
20. Assignment. This EULA and the rights and obligations hereunder shall not be assigned or delegated by Customer without the express prior written consent of Kindwell, provided that Customer may transfer this EULA upon a complete sale or transfer of the Product(s) to the extent permitted under the Other Agreements. Kindwell may, at any time, assign this EULA, or assign any of its rights and/or delegate any of its obligations hereunder, with or without notice to Customer. Subject to the foregoing, this EULA shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. A permitted assignment under this Section 43 shall not constitute an amendment of this EULA if the assignment does not change any terms, conditions or provisions of this EULA other than replacing the assigning party with the assignee.
21. No Third Party Beneficiaries. No third party shall have any right under any license or right granted to Customer in this EULA or shall be an intended third party beneficiary or have third party beneficiary rights hereunder.
22. Severability; Blue Pencil. In the event and to the extent that any part or provision of this EULA is invalid or unenforceable in any particular country, state, or jurisdiction, such part or provision shall be interpreted both to be valid and enforceable and to conform to the greatest extent possible to the intent and purpose of such part or provision as set forth in this EULA. In the event that one or more of the provisions of this EULA is found to be illegal or unenforceable, this EULA shall not be rendered inoperative but the remaining provisions shall continue in full force and effect.
23. Governing Law. This EULA, the interpretation and enforcement of this EULA or any term, condition, or provision herein, any disputes under this EULA, and the resolution of any dispute under this EULA, shall be governed by the law of the State of Delaware, United States of America, except for any conflicts of laws rules to that would result in the application of the law of any other jurisdiction, and applicable U.S. federal law. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA or any transaction hereunder.
24. Disputes. Without limiting the right of Kindwell to seek any injunctive relief pursuant to Section 18 of this EULA in any appropriate jurisdiction and any court therein, the Parties agree that the U.S. federal and state courts located in Wilmington, Delaware, United States of America, will have exclusive jurisdiction to resolve any disputes between Customer and Kindwell concerning this EULA. The parties hereby irrevocably consent and submit to, and waive any objection to, personal jurisdiction of such courts.
25. Entire Agreement; Interpretation. This is the entire agreement between Customer and Kindwell relating to the right and license to the Technology in the Product(s) or the Services, and other subject matter herein and supersedes all prior, collateral or contemporaneous oral or written representations, warranties or agreements regarding the same. Where this EULA states that a Party “shall” or “will” perform in some manner or otherwise act or omit to act, it means that such Party is legally obligated to do so in accordance with this EULA. The principle ejusdem generis shall not apply to any provision in this EULA or any schedule or any exhibit attached hereto, and the term “including” means “including without limitation” and is intended by way of example and not limitation. The terms, conditions, and provisions of this EULA shall not be interpreted against the drafter, and for purposes of any interpretation, both Parties shall be deemed to be drafters of this EULA. All headings are intended solely for the convenience of the Parties, and none will be deemed to affect the meaning or construction of any provision hereof. Words of any gender used in this EULA are intended to include any other gender, and words in the singular number include the plural, and vice versa, unless the context clearly indicates otherwise.
26. Waivers. Any waiver of a right under this EULA or a breach of this EULA by Kindwell must be express and written. The waiver of any breach of any provision of this EULA shall not be construed to be a waiver of any succeeding breach of such provision or a waiver of the provision itself. Selection of a specific remedy does not constitute, and shall not be interpreted to constitute, a waiver of any other remedy, and failure to select a specific remedy does not constitute, and shall not be interpreted to constitute, a waiver of such remedy.
27. Electronic Signature. The Parties agree that this EULA may be accepted and entered into by electronic signature or implicitly, including, without limitation, when the Product including the Technology is first used by or for Customer (e.g., when such Product is first turned on by or for Customer).
Effective September 1, 2020