Akana End User License Agreement

©2000-2026 Akana, Inc., a Perforce company. All Rights Reserved.

READ THIS CONTRACT CAREFULLY. BY CLICKING THE 'ACCEPT' BOX AND/OR INSTALLING OR USING Akana, INC.'S ('Akana') SOFTWARE OR CODE YOU ARE AGREEING TO ENTER INTO THIS SOFTWARE LICENSE AGREEMENT ('AGREEMENT') IN AN ONLINE ELECTRONIC FORMAT AND TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS IS A LEGAL AGREEMENT BETWEEN Akana AND YOU, THE END USER, ('LICENSEE') FOR THE LICENSE OF A LIMITED RIGHT TO USE THE SOFTWARE, TOGETHER WITH THE ACCOMPANYING DOCUMENTATION AS SET FORTH HEREIN. Akana DOES NOT AUTHORIZE THE DOWNLOADING, INSTALLATION OR USE OF THE SOFTWARE UNTIL LICENSEE HAS AGREED TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY CLICKING ON THE 'I ACCEPT THE TERMS OF THE LICENSE AGREEMENT' RADIO BUTTON BELOW.

1. Limited Right to Use

(a) Subject to the additional licensing terms contained in the License Agreement Addendum - Licensed Products Exhibit which accompanies the Software (the 'Licensed Product Exhibit'), Akana grants Licensee a limited, non-exclusive, non-transferable, non-sublicenseable license to install and use solely for Licensee's internal business purposes, the machine readable object code version of the software ('Software') and its accompanying documentation ('Documentation') defined in the Licensed Product Exhibit.

(b) If the Licensed Product Exhibit indicates that the license granted herein is for EVALUATION, Akana grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable license to install and use the machine readable object code version of the Software and its Documentation defined in the Licensed Product Exhibit solely for Licensee's internal evaluation for the number of days in the Licensed Product Exhibit (the 'Evaluation Period'). The Software is licensed to Licensee 'AS IS', without any representations or warranties whatsoever. Akana SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. Akana SHALL HAVE NO LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY LIABILITY OR DAMAGES RELATED TO LICENSEE'S USE OF THE SOFTWARE, AND ALL USE OF THE SOFTWARE IS AT LICENSEE'S SOLE RISK.  LICENSEE AGREES THAT THIS LIMITATION IS A REASONABLE AND AN ESSENTIAL PART OF THE BARGIN IN EXCHANGE FOR OBTAINING THE LICENSE GRANTED HEREIN. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL Akana BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, MULTIPLE OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION AND/OR LOST DATA, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE OR ACCURACY OF THE DATA GENERATED BY, AND/OR OUTPUT PRODUCED FROM THE SOFTWARE OR DOCUMENTATION EVEN IF Akana HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. Licensee is hereby notified that the evaluation copy of the Software provided may include a 'time-out' mechanism that will automatically disable use of the Software at the end of the Evaluation Period. In addition, the following sections of this Agreement are NOT APPLICABLE TO YOU:

i) Section 1(a) above of Limited Right to Use

ii) Section 1(d) of Limited Right to Use

iii) Section 3 - Limited Warranty; Disclaimer of Warranty

iv) Section 4 - Infringement

v) Section 5 - Limitation of Liability

vi) Section 7(a) - of Term and Termination

(c) Licensee may make the number of copies of the Software and Documentation corresponding to the indicated quantities and licensing restrictions contained in the Licensed Product Exhibit.

(d) Licensee may make a reasonable number of archival copies of the Software and Documentation, provided that all copies include Akana's copyright and any other proprietary notices as included in the delivery of the Software and Documentation. Any copy of the Software and Documentation made by Licensee is the exclusive property of Akana.

(e) Except as expressly authorized herein, Licensee shall not: (i) copy the Software or Documentation; (ii) permit any parent, subsidiaries, affiliated entities or third parties to use the Software or Documentation; (iii) cause, aid or permit reverse compilation, reverse engineering or reverse assembly of all or any portion of the Software; (iv) modify, alter, translate, disassemble, decompile or create derivative works based upon the Software or Documentation or otherwise attempt to gain access to the source code to the Software; (v) distribute, disclose, publish, market, sell, loan, provide, demonstrate, rent, lease, transfer, sublicense or assign to any third party any portion of the Software or the Documentation; or (vi) use the Software or Documentation to provide services to third parties (i.e., in the operation of a service bureau, commercial time-sharing or third-party training). Licensee further agrees that the Software will be used only by Licensee and Licensee's employees or consultants solely in compliance with the rights granted in this Agreement.

2. Ownership

Akana and its applicable licensors shall retain (i) all rights, title and interest in and to the Software (in object and source code forms) and Documentation, copies thereof, corrections thereto (whether made by Akana or others) and related materials, (ii) all rights, title, interest and goodwill associated with Akana's service marks, trademarks, trade names or any other designations, and (iii) all copyrights, patent rights, trade secret rights and all other intellectual property and proprietary rights in the Software (in object and source code forms) and Documentation.

3. Limited Warranty; Disclaimer of Warranty

Akana warrants to Licensee that for a period of ninety (90) days from the date of shipment (or delivery if done electronically) of the Software, the Software will substantially conform to its Documentation. Licensee's sole and exclusive remedy under the foregoing warranty shall be for Licensee to use commercially reasonable efforts to correct any substantial non-conformity of the Software reported to Akana in writing during the period of warranty. The warranty herein shall not apply to any defect in the Software that is caused by (i) the use or operation of the Software with an application or in an environment other than that intended or recommended by Licensee, (ii) modification to the Software not made by Akana, (iii) third party hardware or software or (iv) Licensee's failure to implement all error corrections which are issued by Akana.

EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, Akana PROVIDES NO WARRANTIES, EITHER EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO ANY SOFTWARE, AND Akana SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

4. Infringement

Akana shall, at its expense, defend or settle any action against Licensee to the extent based upon a claim that the Software infringes any United States copyright, trademark or trade secret in existence at the date of execution of this Agreement and will pay such damages or costs as are finally awarded against Licensee attributable to such action, provided that Licensee (i) notifies Akana promptly in writing of any such action, (ii) gives Akana sole control of the defense and/or settlement of such action and (iii) gives Akana all reasonable information and assistance (at Licensee's reasonable expense excluding time spent by Licensee's employees or consultants) in connection with such action. Should the Software become, or in the opinion of Akana be likely to become, the subject of such an infringement claim, Akana may, at its sole option (i) procure for Licensee the right to use the Software free of any liability; or (ii) replace or modify, in whole or in part, the Software to make it non-infringing or (iii) remove the Software, or part thereof, and refund to Licensee or third party intermediary the aggregate license fees received by Akana from Licensee or third party intermediary, less an amount equal to one-third of the license fees for each year of use up to 100% of the license fees received by Akana. Akana assumes no liability hereunder for any infringement arising from: (i) any method or process in which the Software may be used; (ii) any compliance with Licensee's designs or specifications; (iii) use of other than the current unaltered release of the Software; or (iv) the combination, operation or use of the Software with any non-Akana, data or hardware.

THIS SECTION SETS FORTH Akana's ENTIRE LIABILITY AND LICENSEE'S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

5. Limitation of Liability

Akana's TOTAL AND CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE LICENSE FEES RECEIVED BY Akana HEREUNDER. LICENSEE FURTHER AGREES THAT Akana WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN NO EVENT WILL Akana BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

6. Protection and Security

Licensee is solely responsible for any authorized or unauthorized access to the Software. Licensee agrees to comply with all laws and regulations applicable to the gathering, processing, storing, transmitting and dissemination of business or personal information.

7. Term and Termination

(a) Term. This Agreement and the licenses granted hereunder shall be effective as of the date of acceptance of this Agreement and the licenses granted herein shall continue in perpetuity unless terminated as set forth in this Section or as otherwise agreed between the parties in writing.

(c) Termination. Without prejudice to any other rights, Akana may terminate this Agreement if Licensee is not in compliance with all the terms and conditions of this Agreement. In addition, Akana may terminate this Agreement and the licenses granted herein if: (i) the Licensee terminates or suspends its business, has wound up or liquidated, voluntarily or otherwise, or becomes the subject of a voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors.

(d) Effect of Termination. Licensee's rights under this Agreement shall terminate immediately upon receipt of a termination notice. However, the obligations of Akana and Licensee in Sections 2, 5, and 8-13, and all payment obligations accruing prior to termination, shall survive termination of this Agreement. Within five (5) days after termination of this Agreement, Licensee shall discontinue use of the Software and Documentation and return to Akana or destroy, at Licensee's expense, the Software, Documentation and all copies thereof, and deliver to Akana a certification, in writing signed by an officer of Licensee, that the Software, Documentation and all copies thereof have been returned or destroyed, as requested by Akana, and their use discontinued. Nothing contained herein shall limit any other remedies that Akana may have for the default of Licensee under this Agreement nor relieve Licensee of any of its obligations incurred prior to such termination.

8. Confidential Information

For purposes of this Agreement, 'Confidential Information' shall include all trade secrets and confidential information of Akana and its licensors, including the Software (both source and object code) and Documentation, algorithms, development techniques, the results of all evaluations, testing, benchmarking and the like of the Software by Licensee, support techniques, methodologies, formulae, business plans, research and development strategies, the terms of this Agreement, Akana's internal personnel, financial, marketing and other business information, and product and service prices, as well as know-how and proprietary information related to the foregoing (collectively, the 'Confidential Information'). Licensee acknowledges that such Confidential Information constitutes highly valuable information of Akana not generally known by Akana's competitors, and that disclosure of such Confidential Information to competitors of Akana or other third parties would cause undue harm to Akana. As such, except as otherwise expressly provided herein, Licensee will retain in strict confidence the Confidential Information and use commercially reasonable efforts to protect the same by preventing any unauthorized disclosure, copying, use, distribution, installation, or transfer of possession of the Confidential Information. If Licensee violates any of the provisions of this Agreement, including, but not limited to this Section, Akana (in addition to any other and additional rights or remedies it may have at law, in equity, or by statute) shall be entitled to immediate and temporary or permanent injunctive relief, it being agreed that the damages that Akana would sustain upon such violation are difficult or impossible to ascertain in advance. The confidentiality provisions of this Section shall survive termination of this Agreement for a period of five (5) years.

9. United States Federal Government Acquisitions

This Section applies to all acquisitions of this Software by or for the federal government of the United States, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government of the United States. By accepting delivery of the Software, the government hereby agrees that the Software and related documentation qualifies as 'commercial' computer software and 'commercial' computer software documentation within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the government's use and disclosure of this Software, and shall supersede any conflicting contractual terms or conditions. If this Agreement fails to meet the government's needs or is inconsistent in any respect with Federal law, the government agrees to return this Software, unused, to Akana and notify Akana in writing of any such failure or inconsistency.

10. No Export

Licensee acknowledges and agrees that the Software may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations there under. Licensee agrees that it will not export or re-export either the Software or any directly related materials to or into any country in violation of such controls or any other laws, rules or regulations of any country, state or jurisdiction.

11. Conflicting Documents

No terms, provisions or conditions of any purchase order, invoice or other business form or written authorization used by either party will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement or the License Agreement Addendum - Licensed Products Exhibit, regardless of any failure of either party to object to such terms, provisions, or conditions. Notwithstanding, the parties agree that if Licensee and Akana have entered into a written software license agreement covering the Software and signed by both parties, such written software license shall supersede this Agreement and that the written software license, not this Agreement, shall govern the terms and conditions of Licensee's use of the Software as of the effective date of the written software license.

12. Taxes

Licensee shall pay or reimburse Akana for all federal, state or local taxes, fees or duties (including without limitation all sales, use, excise, withholding or value-added taxes) arising out of this Agreement or the licenses granted or services provided under this Agreement (other than taxes on our net income). Licensee shall hold Akana harmless from all claims and liability arising from Licensee's failure to report or pay any such taxes, duties and assessments.

13. Injunctive Relief

Licensee agrees that a violation or threatened violation of its confidentiality obligations or the use of the Software beyond the terms of the license set forth herein will cause Akana irreparable harm for which there is no adequate remedy at law and that Akana shall be entitled to injunctive or other equitable relief in any court of competent jurisdiction to remedy any such breach. Licensee waives any requirement for a bond in connection with any claim by Akana for injunctive relief.

14. Audit Rights

Akana reserves the right to audit Licensee's use of the Software upon five (5) days' notice, but no more frequently than once every year. In the event that Akana finds that Licensee is not using the Software in accordance with the terms and conditions of this Agreement, then Licensee agrees to reimburse Akana for the cost of the audit without limiting Akana's other rights under this Agreement or in law or equity.

15. Force Majeure

Akana shall not be responsible for any delays or inability to perform any of its obligations under this Agreement due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection material unavailability, or any other cause beyond the reasonable control of Akana.

16. Miscellaneous

This Agreement and the license granted hereunder may not be assigned or transferred by operation of law or otherwise by Licensee without Akana's prior written consent. Akana may assign or transfer this Agreement to any successor by way of merger, acquisition or sale of all or substantially all of the assets relating to this Agreement. The terms of this Agreement shall be construed in accordance with the substantive laws of the State of California, without giving effect to the principles of conflicts or choice of law. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. If any of this Agreement is held to be unenforceable, such provision shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law. This Agreement and the License Agreement Addendum - Licensed Products Exhibit represents the entire understanding between the parties with respect to its subject matter and supersedes all prior written and oral communications. This Agreement may not be modified except by a written agreement signed by Akana. A waiver by Akana of its rights hereunder shall not be binding unless contained in a written agreement signed by Akana. The non-enforcement or waiver of any provision hereunder on one occasion shall not constitute a waiver of such provision or any other provision hereunder on any other occasions.

READ THIS CONTRACT CAREFULLY. BY ACCEPTING THIS AGREEMENT AND/OR INSTALLING OR USING ANY SOFTWARE YOU ARE AGREEING TO ENTER INTO THIS AGREEMENT IN AN ONLINE ELECTRONIC FORMAT AND TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.