Applicability. This end user license agreement (the “Agreement”) governs your use of Kadence’s software (the “Kadence Software”) unless such use is subject to a separate, superseding agreement between you and Kadence Limited and its subsidiaries (“Kadence”). By downloading, copying, or using the software, you agree to this Agreement.
Terms. This Agreement includes supporting material accompanying the Kadence Software or referenced by Kadence, which may be software license information, additional license authorizations, software specifications, supplier terms, opensource software licenses and similar content (“Supporting Material”).
Authorization. If you agree to this Agreement on behalf of another person or entity, you warrant you have authority to do so.
Consumer Rights. If you obtained Kadence Software as a consumer, nothing in this Agreement affects your statutory rights.
Software – Electronic Delivery. Kadence may elect to deliver software and related software product or license information by electronic transmission or download.
Software – License Grant. If you abide by this Agreement, Kadence grants you a non-exclusive, non-transferable license to use the Kadence Software and information that can be derived from data from the use of the software for your internal purposes only, and this is subject to any specific software licensing information that is in the software product or its Supporting Material.
Software – Restrictions on Use. Your use is subject to the following restrictions, unless specifically allowed in Supporting Material: a. You may not use Kadence Software to provide services to non-affiliated third parties. b. You may not make copies and distribute, resell or sublicense software to third parties.
c. You may not download and use patches, enhancements, bug fixes, or similar updates unless you have a license to the underlying software. However, such license doesn’t automatically give you a right to receive such updates and Kadence reserves the right to make such updates only available to customers with support contracts.
d. You may not copy Kadence Software or make it available on a public or external distributed network.
e. You may not allow access on an intranet unless it is restricted to authorized users.
f. You may not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of the Kadence Software. If you have a mandatory right to do so under statute, you must inform Kadence in writing about such modifications.
g. You may not operate the Kadence Software in any way that would violate, or that would cause Kadence to violate, any applicable laws, regulations, or rules, including and without limitation those relating to privacy, data protection, and electronic communications.
Software – Remote Monitoring. Some Kadence software may require keys or other technical protection measures and Kadence may monitor your compliance with the Agreement, remotely or otherwise. If Kadence makes a license management program for recording and reporting license usage information, you will use such program no later than 180 days from the date it is made available.
Software – limited warranty for Kadence software. Kadence shall use commercially reasonable efforts to ensure the Kadence Software materially conforms to its specifications, if any, and is free of malware. If you notify Kadence of nonconformance to this warranty, Kadence will rectify such non-conformance in accordance with the Kadence Service Level Agreement. This Agreement states all remedies for software warranty claims. Kadence does not warrant that the operation of software will be uninterrupted or error free, or that software will integrate with other software other than as authorized by Kadence in Supporting Material. To the extent permitted by law, Kadence disclaims all other warranties.
Software – Integrations. Kadence Software can include interfaces and APIs for integration with non-Kadence software and systems. Kadence does not warrant that the operation of non-Kadence software in conjunction with these interfaces and APIs will be uninterrupted or error free.
Ownership. No transfer of ownership of any intellectual property will occur under this Agreement.
Copyright Notices. You must reproduce copyright notices on software and documentation for authorized copies.
Intellectual Property Rights Infringement. Kadence will defend and/or settle any claims against you that allege that Kadence Software as supplied under this Agreement infringes the intellectual property rights of a third party. Kadence will rely on your prompt notification of the claim and cooperation with our defence. Kadence may modify the Kadence Software so as to be non-infringing and materially equivalent, or we may procure a license. If these options are not available, we may, in our sole discretion, refund to you the amount paid for the affected product in the first three months. Kadence is not responsible for claims resulting from any unauthorized use of the software.
Limitation of Liability. Kadence’s liability to you under this Agreement is limited to the amount actually paid by you to Kadence or its authorized Distributors and Resellers for the relevant software, except for amounts in Section 12 (“Intellectual Property Rights Infringement”). Neither you nor Kadence, not Kadence’s authorized Distributors and Resellers will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit either party’s liability for: unauthorized use of intellectual property, death or bodily injury caused by their gross negligence; acts of fraud; wilful repudiation of the Agreement; or any liability that may not be excluded or limited by applicable law. Kadence is not liable if Kadence Software has not been acquired directly from Kadence or from an authorized Distributor or Reseller.
Termination. This Agreement is effective until terminated or in the case of a limited-term license, upon expiration; however, your rights under this Agreement terminate if you fail to comply with it. Immediately upon termination or expiration, you will destroy the software and documentation and any copies or return them to Kadence. You may keep one copy of software and documentation for archival purposes. We may ask you to certify in writing you have complied with this section. Warranty disclaimers, the limitation of liability, this section on termination, and Section 16 (“General”) will survive termination.
General. a. Assignment. You may not assign this Agreement without the prior written consent of Kadence or without prior written consent of Kadence’s authorized Distributor and Reseller, payment of applicable transfer fees, and compliance with Kadence’s software license transfer policies. Authorized assignments will terminate your license to the software and you must deliver software and documentation and copies thereof to the assignee. The assignee must agree in writing to this Agreement for the assignment to be valid.
b. U.S. Government. If the software is licensed to you for use in the performance of a U.S. Government prime contract or subcontract, you agree that consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are licensed under Kadence’s standard commercial license or the standard commercial license of Kadence’s authorized Distributor and Reseller.
c. Global Trade Compliance. You agree to comply with the trade-related laws and regulations of the U.K., U.S. and other national governments. If you export, import or otherwise transfer products provided under this Agreement, you will be responsible for obtaining any required export or import authorizations. You confirm that you are not located in a country that is subject to trade control sanctions and further agree that you will not retransfer the products to any such country. Kadence may suspend its performance under this Agreement to the extent required by laws applicable to either party.
d. Audit. Kadence or its authorized Distributor and Reseller may audit you for compliance with the software license terms. Upon reasonable notice, Kadence may conduct an audit during normal business hours (with the auditor’s costs being at Kadence’s expense). If an audit reveals underpayments, then you will pay Kadence such underpayments and reimburse Kadence for its audit expenses.
e. Open-Source Components. To the extent the Supporting Material includes open-source licenses, such licenses shall control over this Agreement with respect to the particular open-source component. To the extent Supporting Material includes the GNU General Public License or the GNU Lesser General Public License: (a) the software includes a copy of the source code; or (b) if you downloaded the software from a website, a copy of the source code is available on the same website; or (c) if you send Kadence written notice, Kadence will send you a copy of the source code for a reasonable fee.
g. Notices. Written notices under this Agreement may be provided to Kadence via the method provided in the Supporting Material.
h. Governing Law. This Agreement will be governed by the laws of England and Wales (unless Chargifi Inc. is the contracting party, in which case the laws of Nevada shall govern).
i. Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations not caused by a force majeure event.
j. Entire Agreement. This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. If Kadence doesn’t exercise its rights under this Agreement, such delay is not a waiver of its right.
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