Smart Tank User Agreement

Smart Tank User Agreement

SMART TANK END USER LICENSE AGREEMENT

Effective Date: August 23rd, 2019

Version 1.0

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This Agreement is a legal agreement between you, the customer, and Koller Products, LLC, (referred to herein as “Koller”) with its principal place of business at 19919 Shawnee Mission Parkway, Shawnee, Kansas 66218, regarding the license, access, and use of Koller’s Smart Tank software platform (hereinafter individually and collectively the "Smart Tank Service") including without limitation: any software embedded on any WiFi enabled fish tank product manufactured, sold, or otherwise provided by Koller and the monitoring and communication hardware associated therewith; any webpage or mobile application for accessing or controlling any functionality of that fish tank product; and any support services offered by Koller related thereto. Koller may provide the Smart Tank Service under the brand names of other entities, through resellers, retailers, or other distribution channels (collectively with Koller, the "Koller Related Entities") which shall not alter the fact that this Agreement governs the Smart Tank Service. In this Agreement, "you,” "your," and “yourself” refer collectively to you, the customer, and "we", "us" and "our" refer collectively to Koller.

IMPORTANT:

PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. YOU WILL HAVE ACCEPTED THIS END USER LICENSE AGREEMENT IF YOU: 1) OPEN THE PRODUCT PACKAGING FOR ANY KOLLER WIFI ENABLED FISH TANK PRODUCT AND SETUP, INSTALL, OR OTHERWISE USE THAT PRODUCT; 2) SETUP, ACCESS, OR USE THE SMART TANK SERVICE INCLUDING WITHOUT LIMITATION ANY WEBSITE OR MOBILE APPLICATION RELATED THERETO; OR 3) CLICK THE "I ACCEPT" OR SIMILAR BUTTON ASSOCIATED WITH THIS END USER LICENSE AGREEMENT LINKED OR OTHERWISE PRESENTED ON OR IN CONJUNCTION WITH ANY WEBSITE OR MOBILE APPLICATION RELATED TO THE SMART TANK SERVICES (“AGREEMENT”).

KOLLER IS WILLING TO ALLOW YOUR LICENSE TO THE SMART TANK SERVICE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT YOU ARE BINDING YOURSELF TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN KOLLER IS UNWILLING TO ALLOW THE LICENSE TO THE SMART TANK SERVICE AND YOU MUST NOT ACCESS, SETUP, ACTIVATE, OR USE ANY PART OF THE SMART TANK SERVICE, AND YOUR SOLE RECOURSE IS TO RETURN THE WIFI ENABLED FISH TANK PRODUCT TO YOUR POINT OF PURCHASE.

THE SMART TANK SERVICES ARE NOT INTENDED TO BE USED BY INDIVIDUALS UNDER THE AGE OF THIRTEEN (13). IF YOU ARE UNDER THIRTEEN (13) YEARS OF AGE, YOU MAY NOT USE THE SMART TANK SERVICES.

Koller may make changes to this Agreement at its sole discretion. Changes will be communicated to you by us posting the new version of the Agreement on its website at www.kollerproducts.com or as otherwise determined by Koller in its sole discretion and provided to you, and your acceptance of and/or continued access or use of any Smart Tank Service after such changes to this Agreement will constitute your acceptance of such changes. COPIES OF THIS AGREEMENT INCLUDED IN PACKAGING MAY BE OUTDATED IN COMPARISON TO UPDATED VERSIONS OF THIS AGREEMENT. IN ALL CASES THE CURRENT VERSION OF THIS AGREEMENT AS PRESENTED AT THE ABOVE URL OR AS OTHERWISE PROVIDED TO YOU BEYOND THE TERMS IN THE PACKAGING WILL BE THE TERMS AND CONDITIONS BINDING UPON YOU.

1. DEFINITIONS.

Throughout this Agreement and in addition to terms defined throughout this Agreement, the following descriptions and definitions shall apply.

a. “Content” shall mean all text, graphics, audio, video, photographs, charts, data, and other information displayed or otherwise accessible or viewable by you by accessing or using the Smart Tank Service, in particular and without limitation, through any webpage or mobile application regarding the Smart Tank Service.

b. "Documentation" as used in this Agreement means written information (whether contained in user or technical manuals, instructions, training materials, or specifications) specifically pertaining to the Smart Tank Service and made available by Koller with the Smart Tank Service.

c. “Intellectual Property” shall mean all intellectual property and industrial property rights and assets, however arising, pursuant to the laws of any jurisdiction throughout the world, whether registered or unregistered, including without limitation any and all: (a) trademarks, service marks, trade names, brand names, logos, trade dress, design rights and other similar designations of source, sponsorship, association or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications and renewals for, any of the foregoing; (b) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights, author, performer, moral and neighboring rights, and all registrations, applications for registration and renewals of such copyrights; (c) inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections and other confidential information and all rights therein; (d) patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models); and (e) software and firmware, including data files, source code, object code, scripts, mark-up language, application programming interfaces, architecture, files, records, schematics, computerized databases and other related specifications and documentation.

d. "Modifications" refers to additional or modified functionality, updates, enhancements, security updates and patches, and upgrades to the Smart Tank Service or to remove or terminate the functionality of the Smart Tank Service.

2. GRANT OF LICENSE.

a. Subject to the terms and conditions of this Agreement, Koller grants to you a nonexclusive, non-sublicensable, and nontransferable (except as set forth herein) license to access and use during the term of this Agreement the Smart Tank Service, along with its related Documentation.

b. TITLE AND LIMITATIONS. This is a limited license to access and use the Smart Tank Service during the term of this Agreement, not a transfer of title to all or any part of the Smart Tank Service. Koller and its licensors retain ownership of all copies of, and all Intellectual Property rights in and to the Smart Tank Service, including without limitation all software and Content, and all related Documentation. You are granted no implied licenses to any other Intellectual Property rights other than as specifically granted herein. You acknowledge that the Smart Tank Service contains trade secrets of Koller, its suppliers, or licensors, including but not limited to, the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, you shall have no right, and you specifically agree not to: (i) transfer, assign or sublicense your license to another person or entity and you acknowledge that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to, or otherwise modify or adapt, the Smart Tank Service or to create derivative works based upon the Smart Tank Service, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, translate, disassemble or otherwise reduce the Smart Tank Service to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (iv) use or permit the Smart Tank Service to be used for commercial use or to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Koller; (v) disclose, provide, or otherwise make available trade secrets contained within the Smart Tank Service in any form, to any third party without the prior written consent of Koller; (vi) use the Smart Tank Service to develop any software application or similar products and services or develop methods to enable unauthorized parties to use, recreate or infringe upon the Intellectual Property rights in and to the Smart Tank Service; and (vii) contest or challenge the ownership or validity of, or adopt, apply for, register or otherwise seek to legally protect any of Koller’s Intellectual Property related to the Smart Tank Service, or aid or abet others in doing so, either during the Term of this Agreement or afterword. You acknowledge and agree that Koller reserves the right to remotely prevent access to and/or use of the Smart Tank Service in its sole discretion and without prior notice to you.

c) FEEDBACK. You may provide feedback to Koller with respect to the Smart Tank Service. Koller may use such feedback for any purpose without obligation to you of any kind. To the extent a license is required to make use of such feedback, you hereby grant to Koller an irrevocable, non-exclusive, perpetual, royalty-free, transferrable license, with right to sublicense, to use such feedback in connection with Koller’s business, including enhancement of the Smart Tank Service without any consideration or further consent required from you now or at any time in the future.

3. ACCESS TO SMART TANK SERVICE. In order to use Smart Tank Service, you must purchase a Koller WiFi enabled Smart Tank fish tank product, provide your own WiFi network, provide your own e-mail or other method of notification of any reminders as indicated by the Smart Tank Service; and otherwise provide all devices, services, equipment and software necessary to use the Smart Tank Service that are not a part of the Smart Tank Service. You are responsible for ensuring that your devices, services, equipment and/or software do not disturb or interfere with Koller’s operations or the operations of other users of the Smart Tank Service. If any modification to Smart Tank Service requires changes in your devices, services, equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance Smart Tank Service, including the release of new products and services and all Modifications, shall be subject to the terms and conditions of this Agreement.

You must install the WiFi enabled tank fish tank product according to its instructions as included with the WiFi fish tank product for it to function properly. The placement of the WiFi enabled fish tank product, weather conditions, presence and configuration of buildings, your WiFi signal strength and router settings, and other factors may impact whether the WiFi enabled fish tank product can connect to your network and whether communications can and are sent to you. THE KOLLER RELATED ENTITIES HAVE NO LIABILITY FOR ANY FAILURE TO PROVIDE ANY CONNECTIONS OR NOTIFICATIONS FOR ANY REASON.

4. SETUP DETAILS AND CREDENTIALS. To the extent credentials are required for your setup and use of the Smart Tank Service, you must enter your own credentials. You agree to keep all Smart Tank Service setup and credential details private and to not share them with anyone else in order to prevent unauthorized access to your notification settings, and/or the Content. The Koller Related Entities are not liable for any loss or damage arising from any access to, sharing or use of your notification settings credentials or the Content. All such information you enter must be accurate. THE KOLLER RELATED ENTITIES EXPLICITLY DISCLAIM ALL LIABILITY FOR ANY LOSS OR THEFT OF INFORMATION YOU ENTER INTO THE SMART TANK SERVICES.

5. KOLLER IS NOT OBLIGATED TO MONITOR. The Koller Related Entities have no responsibility for monitoring or otherwise taking action regarding any notices or other information related to or gathered as a part of the Smart Tank Service. You acknowledge that all such monitoring and other actions related to the Smart Tank Service are solely your responsibility. You understand that the Smart Tank Service is not intended to be used as a primary life, safety, burglary, fire protection, or other critical event monitor or notice system.

6. MODIFICATIONS. For continuity of performance, you agree that Koller may, at any time in the sole discretion of Koller, access the software on your WiFi enabled fish tank product, and/or cause the software to contact Koller, in order to provide Modifications. Koller does not warrant that Modifications to the Smart Tank Service will be compatible with your devices, equipment, or software.

7. TERMINATION. This Agreement shall be effective as of your acceptance of this Agreement as stated in this Agreement and shall continue in effect until terminated. Koller may, at its election and in its sole discretion, terminate this Agreement and your license, access, or use of all or any portion of the Smart Tank Service at will and with or without cause. Koller is further entitled to obtain injunctive relief if your use of the Smart Tank Service is in violation of any restrictions set forth in this Agreement, including without limitation any license restrictions. This Agreement shall automatically terminate if you cease having title to an Koller WiFi enabled fish tank product for which this Agreement applies. Upon termination, you must cease using and accessing the Smart Tank Service. The preamble prior to the Sections and Sections 1, 2(b) and (c), 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 shall survive termination.

8. NO WARRANTY. THE SMART TANK SERVICE FURNISHED BY KOLLER AND THE KOLLER RELATED ENTITIES AND ACCEPTED BY YOU IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY WHATSOEVER. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED BY THE KOLLER RELATED ENTITIES. THE KOLLER RELATED ENTITIES DO NOT WARRANT THAT THE SMART TANK SERVICE OR ASSOCIATED DOCUMENTATION WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SMART TANK SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF SMART TANK SERVICE IS WITH YOU. SOME STATES MAY NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR TO SELL A CONSUMER PRODUCT “AS-IS,” SO THIS EXCLUSION MAY NOT APPLY TO YOU.

WARRANTIES REGARDING THE WIFI ENABLED FISH TANK PRODUCT HARDWARE ITSELF, EXCLUDING THE SMART TANK SERVICES, IS GOVERNED BY THE LIMITED WARRANTY INCLUDED WITH THAT PRODUCT.

9. LIMITATION OF KOLLER LIABILITY. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL THE KOLLER RELATED ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT DAMAGES OF ANY TYPE, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST SAVINGS, LOST DATA, PROPERTY DAMAGE, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF CAPITAL OR OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SMART TANK SERVICE FURNISHED OR TO BE FURNISHED BY KOLLER UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF THE KOLLER RELATED ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE AGGREGATE LIABILITY OF THE KOLLER RELATED ENTITIES UPON ANY AND ALL CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SMART TANK SERVICE FURNISHED OR TO BE FURNISHED BY THE KOLLER RELATED ENTITIES UNDER THIS AGREEMENT WILL IN ANY EVENT BE ABSOLUTELY LIMITED TO THE GREATER OF THE PURCHASE PRICE FOR THE WIFI ENABLED FISH TANK PRODUCT THAT IS THE SUBJECT OF ANY LIABILITY CLAIM OR THE MINIMUM AMOUNT ALLOWED BY LAW. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

10. APP STORE DISCLAIMER. This Agreement is between you and Koller, not any other entity such as without limitation Google, Inc., Apple, Inc., or Amazon.com, Inc., or any other third party through which you obtain any mobile application or the Smart Tank Services (collectively and individually “Third Party App Stores”), and in no event shall any Third Party App Store be obligated to provide maintenance or support of the Smart Tank Services, provide any warranty granted in this Agreement, or provide any indemnity for Intellectual Property violations of the Smart Tank Services. You are bound by any applicable terms set forth in relation to any such Third Party App Stores. As to an app downloaded from Apple's app store, the license herein to the Smart Tank Services is only to use the app on the Apple-branded products that you own or control. In the event of any failure of the Smart Tank Services to comply with any warranty as set forth herein, where that Smart Tank Service is separately sold from a fish tank and was purchased through Apple, Inc., you may contact Apple, Inc. for a refund of the purchase price paid through Apple, Inc. You must contact Koller and not any Third Party App Stores, regarding any product liability claims, claims that the Smart Tank Services fail to conform to any applicable legal or regulatory requirement, or any claims arising under any consumer protection, privacy, or similar legislation. Third Party App Stores and their subsidiaries shall be third party beneficiaries to this Agreement and shall have the right to enforce this Agreement against you.

11. INDEMNITY BY YOU. You will, to the fullest extent permitted by law, indemnify the Koller Related Entities, and their officers, directors, shareholders, employees and agents and their respective successors and assigns (collectively, the “Indemnified Parties”) against and hold the Indemnified Parties harmless from any and all claims, losses, liabilities, damages, judgments, awards, settlements, costs and expenses, including reasonable attorneys' fees (collectively a "Claim") in connection with investigating, defending, or settling any claim relating to or arising out of any breach by you of this Agreement, your implementation or use of the Smart Tank Service in a way that infringes or misappropriates any third party’s Intellectual Property rights or violates applicable law, or any acts or omissions on the part of you which gives rise to claims against the Indemnified Parties.

12. YOUR OBLIGATIONS. You represent and warrant that (a) that you have all the requisite power and authority to enter into this Agreement; (b) you shall use the Smart Tank Service only for lawful purposes, and will comply at all times with all applicable federal, state, and local laws and regulations applicable to the use of the same; and (c) you shall use the Smart Tank Service only for your personal needs, and for no other commercial or third party use. You agree not to use any automated or manual process to interfere with, modify, or attempt to interfere with or modify the Smart Tank Service.

13. GENERAL PROVISIONS.

a. ENFORCEMENT/CHOICE OF LAW/CHOICE OF FORUM. The laws of the State of Kansas shall apply to this Agreement, without regard to any conflict of laws provisions. The 1980 United Nations Convention on Contracts for the International Sale of Goods, the United Nations Convention on the Limitation Period in the International Sale of Goods, and the Uniform Computer Information Transactions Act, and any implementations thereof in various jurisdictions and any subsequent revisions thereto, shall not apply to these Terms of Use. Any controversy or claim arising out of or relating to this Agreement or your use of the Smart Tank Service or the Content (a "Dispute") shall be settled by arbitration under the rules provided by the American Arbitration Association (AAA), and you hereby waive any right you may otherwise have to a jury trial.


A single arbitrator shall preside over any arbitration, and such arbitrator shall, in his or her sole discretion, determine the arbitrability of any alleged Dispute. Any arbitration shall be conducted in Shawnee, Kansas. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, either through class arbitration proceedings or otherwise. Judgment on an award rendered by an arbitrator may be entered in any state or federal court within or without the State of Kansas. Notwithstanding the foregoing, in lieu of or addition to any other remedies available to Koller, Koller may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Koller's or any third party's Intellectual Property or proprietary rights, or any issues related to the security of the Smart Tank Services. You hereby irrevocably consent to the exclusive jurisdiction and venue of the State and Federal courts of the State of Kansas with respect to any such injunctive or other relief. You further acknowledge that Koller's rights in its Intellectual Property are of a special, unique, extraordinary character, giving those rights peculiar value, the unauthorized use, disclosure, or loss of which cannot be readily estimated and may not be adequately compensated for in monetary damages. Every provision of this Agreement will be construed, to the extent possible, so as to be valid and enforceable. If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, such provision will be modified by that court of competent jurisdiction to be valid and enforceable while maintaining as close as possible the intent of the parties as indicated by the wording of this Agreement or, if the provision cannot be so modified, deemed severed from this Agreement, and all other provisions will remain in full force and effect.

b. ENTIRE AGREEMENT/NO WAIVER. This Agreement together with the information referred to or linked to by this Agreement, all of which are incorporated herein, sets forth the entire agreement and understanding between Koller and you regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. You acknowledge that it has not been induced to enter into this Agreement by any representations or statements, oral or written, not expressly contained in this Agreement. The failure by Koller at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by Koller will not be deemed a continuing waiver, but will apply solely to the instance to which such waiver is directed.

c. CORRECTION OF ERRORS AND INACCURACIES. This Agreement may contain typographical errors or other errors or inaccuracies and may not be correct or current. Koller reserves the right to correct any errors, inaccuracies or omissions and to change or update this Agreement at any time without prior notice. Koller does not, however, guarantee that any errors, inaccuracies or omissions will be corrected.

d. HEADINGS. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.

e. NO JOINT VENTURE. This Agreement shall not be construed as creating or constituting any partnership, joint venture or agency relationship between the parties.

f. ASSIGNMENT AND RESALE. Koller may assign its rights and obligations under this Agreement but your rights under this Agreement are not assignable or transferable except as part of a sale or other transfer of title of the WiFi enabled fish tank product that is associated with the Smart Tank Service, and then conditioned on the acceptance by the transferee of the title to the then-current Agreement. Upon your transfer of title of WiFi enabled fish tank product that is associated with the Smart Tank Service, your rights under this Agreement shall terminate as set forth in Section 7. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

g. FORCE MAJEURE. The parties acknowledge and agree that either party shall be excused from any delay or failure in its performance hereunder caused by any disruption or slow speed of the Internet, break-downs of security or introduction of computer viruses (and the like) by third parties, any labor dispute, government requirement, act of God, or any other cause beyond its reasonable control. The parties shall use reasonable commercial efforts to cure any such failure or delay in performance arising from a force majeure condition, and shall timely advise each other of such efforts.

h. PRIVACY. Information collected about you is generally governed by Koller's Privacy Policy, which can be viewed at www.kollerproducts.com. Koller may use and disclose your information in special instances when Koller has reason to believe disclosing this information is necessary to investigate, identify, contact, or bring legal action against someone who may be causing injury to or interfering with Koller's rights or property, other Smart Tank Service users, or anyone else. Koller may disclose information when subpoenaed, if ordered or otherwise required by a court of law, arbitrator, or other similar proceeding or the rules governing such a proceeding, for government investigations, with government agencies if required by law, to exercise, establish, or defend Koller's rights, to protect your vital interests or those of any other third party, and when Koller otherwise believes in good faith that any applicable law requires it.

Contact Information for any questions, complaints, or claims:

customercare@kollerproducts.com

or call 1-800-545-1344

Last Modified: August 23rd, 2019

Copyright 2019, Koller Products, LLC

All Rights Reserved.