Subscription and Service Applicable Terms
These Kadince Subscription and Service Terms ("Subscription Terms"), are made and entered into effective as of the date of the Order Form to which they are attached or incorporated by reference (the "Effective Date"), by and between Kadince, Inc. (“Kadince”), a Utah corporation ("Kadince"), and the customer identified in the Order Form ("Customer"). Kadince and Customer may be referred to herein collectively as the "Parties" or individually as a "Party." Terms that are capitalized, but not otherwise defined in these Subscription Terms, shall have the meaning given in the Order Form.
DISCLAIMER: PURSUANT TO THE AGREEMENT, THE SERVICES MAY CONTAIN TOOLS TO ASSIST CUSTOMER WITH ITS COMPLIANCE WITH LAWS AND REGULATIONS. KADINCE IS NOT A PROVIDER OF LEGAL SERVICES, AND NONE OF THE SERVICES SHOULD BE RELIED UPON AS SUCH. RATHER, CUSTOMER AGREES THAT THE SERVICES ARE TO BE USED SOLELY AS A FIRST PREVIEW OF POTENTIAL COMPLIANCE ISSUES, AND THE SERVICES WILL BE USED SOLELY AS PART OF A SEPARATE AND ROBUST COMPLIANCE AND RISK PROGRAM OF THE CUSTOMER. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE TO BE USED AS A TOOL AND NOT AS A SUBSTITUTE FOR LEGAL OR REGULATORY ADVICE. THE SERVICES MAY ASSIST IN CUSTOMER’S REVIEW AND PROVIDE SUGGESTIONS, BUT CUSTOMER SHALL NOT RELY UPON THE SERVICES AS DETERMINATIVE OF COMPLIANCE. CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS. CUSTOMER AGREES TO ENGAGE ITS OWN LEGAL COUNSEL TO FACILITATE COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS. KADINCE DISCLAIMS ANY AND ALL LIABILITY ARISING FROM CUSTOMER’S RELIANCE ON THE SERVICES FOR LEGAL ADVICE OR COMPLIANCE WITH ANY AND ALL LAWS AND REGULATIONS.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS.
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with Kadince or Customer, as applicable. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of Kadince or Customer, as applicable.
1.2. “Agreement” means the Order Form, the Subscription Terms, and any addenda, exhibits, or documents attached or incorporated herein by reference.
1.3. "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Kadince in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
1.4. "Authorized Persons" means Kadince's employees, contractors, agents, and auditors who have a need to know or otherwise access Customer Data to enable Kadince to perform its obligations under this Agreement.
1.5. "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder. Each Authorized User that is not authenticated must agree and enter into the separate End User Terms of Use, as of the Effective Date, which terms and conditions may be found at www.kadince.com/legal/end-user-terms-of-use.
1.6. "Customer Data" means (other than Aggregated Statistics) information, data, and other content that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User by or within the Platform in connection with the Services.
1.7. "Electronic Notice" means notice sent from one Party to the other through electronic means to the email addresses provided by the other Party in the signature block of the Order Form, or, in the case of Kadince, by means of notices posted in login.kadince.com or support.kadince.com.
1.8. "Kadince IP" means the Services, the Platform, and any and all intellectual property provided or made available to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Kadince IP includes Aggregated Statistics and any information, data, or other content derived from Kadince's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
1.9. "Personal Information" means information that Customer provides or for which Customer provides access to Kadince, in accordance with this Agreement that directly or indirectly identifies an individual, either alone or in combination with other information, including any information or data defined as "personal data," "personal information," "personally identifiable information" or similar terms by applicable privacy laws. Customer's business contact information is not by itself Personal Information.
1.10. “Platform” means the Kadince software platform and modules subscribed to by Customer pursuant to the applicable Order Form.
1.11. "Security Breach" means any unauthorized access to or disclosure of Customer Data in the possession or control of Kadince.
1.12. "Sensitive Personal Information" means Personal Data consisting of an individual's (i) government-issued identification number, including Social Security number, driver's license number, or state-issued identification number; (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual's financial account; (iii) biometric, genetic, health, or health insurance data; or (iv) such other sensitive personal information as defined by applicable privacy laws.
1.13. "Services" means the Kadince offering provided under the Agreement, including access to the Platform, hosting, data processing, support, and other services described in the Order Form.
1.14. "Third-Party Services" means any third-party product or service that is not owned by Kadince that may be provided with or incorporated into the Services.
2. ACCESS AND USE OF SERVICES.
2.1. Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all other terms and conditions of the Agreement, Kadince hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13.7), non-sublicensable, limited right to access and use the Services identified in the applicable Order Form during the Term on a subscription basis, solely for use by Authorized Users in accordance with the terms and conditions of the Agreement. Such use is limited to Customer's business purposes, and not for resale. Kadince shall provide to Customer the necessary links that allow Customer to access the Services.
2.2. Beta Services. From time to time Kadince may provide Customer the opportunity to try products or services which are not generally considered complete or error-free and are provided solely on an “as-is” basis for a test period at a length to be determined, without Electronic Notice, solely by Kadince (“Beta Services”). Beta Services (i) are for evaluation purposes and not for production use; (ii) are not considered “Services” under the Agreement; (iii) may not be provided with technical or other support; and (iv) may be subject to additional terms to be specified at the time of acceptance of Beta Services. Kadince may discontinue Beta Services at any time, in its sole discretion, and reserves the right to never make Beta Services available for production use. Beta Services are not subject to any warranties whatsoever, including without limitation the warranties in Section 9.0 of this Agreement and any data or customizations with respect to the Beta Services that are made during the period Beta Services are made available to Customer may be permanently deleted at Kadince’s sole and absolute discretion. Kadince shall have no liability or responsibility with respect to the loss of any data of Customer resulting from Customer’s use of Beta Services.
2.3. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in the Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) make the Services available to, or provide the Services for the benefit of anyone other than Customer and its Authorized Users; (ii) copy, modify, or create derivative works of the Services, or any part, feature, function, or user interface thereof, in whole or in part; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or include the Services in a service bureau or outsourcing offering; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the Services, any software component, network, or any related systems of the Services, in whole or in part; (v) remove any proprietary notices from the Services; (vi) use the Services to store or transmit libelous, or otherwise unlawful material or to store or transmit material in violation of third party privacy rights; (vii) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (viii) use the Services to store or transmit Malicious Code (as defined below); (ix) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; (x) frame or mirror any part of the Services; (xi) access the Services in order to build a competitive product or service or make available, demonstrate, share screenshots, functionality, or any other information about the Services to any competitor or potential competitor of Kadince.
2.4. Reservation of Rights. Kadince reserves all rights not expressly granted to Customer in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Kadince IP.
2.5. Suspension. Notwithstanding anything to the contrary in this Agreement, Kadince may suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Kadince reasonably determines that (A) there is a threat or attack on any of the Kadince IP; (B) Customer's or any Authorized User's use of the Kadince IP disrupts or poses a security risk to the Kadince IP or to any other customer or vendor of Kadince; (C) Customer, or any Authorized User, is using the Kadince IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Kadince's provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (F) an Authorized User is a competitor or potential competitor of Kadince; (ii) any vendor of Kadince has suspended or terminated Kadince's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with 5(b)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Kadince shall use commercially reasonable efforts to provide Electronic Notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Kadince shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Kadince will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2.6. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Kadince may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Kadince and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Kadince. Customer acknowledges that Kadince may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Kadince may (i) make Aggregated Statistics publicly available in compliance with applicable law; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
3. CUSTOMER RESPONSIBILITIES.
3.1. General. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
3.2. Customer Contact Information and Identification. It is Customer’s sole responsibility to add and maintain the information and identification (“Customer Identification”) found within the Admin tab in the settings (“Customer Identification Settings”) of the Platform. This Customer Identification includes, but is not limited to, Customer’s primary and secondary contact persons, email for Electronic Notices, email to receive invoices from Kadince, mailing address, and regulator ID. Kadince, from time to time, may require additional Customer Identification to be collected in the Customer Identification Settings and Customer shall provide such additional Customer Identification within 10 days of Kadince’s request.
3.3. Customer Data. Customer will: (i) be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Customer Data under its control or in its possession; (ii) comply with any applicable laws and regulations applicable to its business and in connection with its performance of its obligations and use of the Services under this Agreement; (iii) ensure that Customer Data does not violate any applicable law or regulation and is free of files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and/or trojan horses (“Malicious Code”); (iv) not use the Services to collect or store any Sensitive Personal Information; (v) use only secure methods, according to accepted industry standards, when transferring or otherwise making available Customer Data to Kadince; and (vi) provide Electronic Notice to Kadince if any Customer Data that Customer or an Authorized User provides to Kadince under this Agreement contains Sensitive Personal Information. Kadince will not be responsible for determining on its own that any information Customer provides under this Agreement qualifies as Sensitive Personal Information.
3.4. Hosting of Customer Data. Customer authorizes Kadince, Third Party Service Providers, and subcontractors acting on its behalf or for its benefit to host, copy, transmit, and display Customer Data as necessary to provide the Services in accordance with the Agreement.
3.5. Intended Use. Customer represents and warrants that it is subscribing to the Services for its own internal business use. Neither Customer nor, to the knowledge of Customer, any Authorized User or Customer Affiliate is a direct or potential competitor of Kadince and is not accessing the Services offered by Kadince under the Agreement for the purposes of monitoring Kadince’s availability, performance, or functionality for any other competitive or benchmarking purpose or any other purpose that is to the detriment or commercial disadvantage of Kadince.
3.6. Third-Party Services. Kadince may from time to time provide functionality or features through the Services that enable Customer to use Third-Party Services. If Customer uses a Third-Party Service, such Third-Party Services are subject to their own terms and conditions and the applicable flow-through provisions referred to at: kadince.com/legal/services (the “Third Party Link”). Customer’s use of a Third-Party Service authorizes Kadince to transfer Customer Data to the applicable Third-Party Service. Third-Party Services are not under Kadince’s control, and, to the fullest extent permitted by law, Kadince is not responsible for any Third-Party Service’s use of Customer’s exported information. If Customer does not agree to abide by the applicable terms for any such Third-Party Services, then Customer should not install or use such Third-Party Services.
4. SERVICE LEVELS AND SUPPORT.
4.1. Service Levels. Subject to the terms and conditions of this Agreement, Kadince shall use commercially reasonable efforts to make the Services available to Customer 99.0% of the time, calculated on an annual basis as determined on each anniversary of this Agreement except for: (i) planned downtime (of which Kadince shall give at least five (5) business days’ Electronic Notice); (ii) any Force Majeure Event and any act of government, an electromagnetic storm, the failure or downtime of any non-kadince.com application, or a denial of service attack; and (iii) any issues caused by Customer.
4.2. Support. Subject to Customer’s payment of the applicable Fees, the access rights granted hereunder entitle Customer to the support services described from time to time on Kadince's website located at https://support.kadince.com/en/ during the Term.
4.3. Upgrades. Customer acknowledges that Kadince is constantly seeking to improve and sometimes alters the Services and reserves the right at any time and from time to time to modify the Services. If, for some reason, the Services will be altered in such a way as to materially degrade the Services, as described in the Order Form, or are going to be discontinued, Kadince shall provide Customer with thirty (30) days’ Electronic Notice. Upon receipt of said notice, Customer shall have the option of terminating the Agreement with respect to the applicable Order Form, effective as of the material alteration or discontinuation, with Electronic Notice to Kadince and will not be required to pay any Fees accruing after the material alteration or discontinuation. Any prepaid Fees will be refunded by Kadince to Customer in accordance with this Agreement. If Customer upgrades the Services from those specified in the Order Form, Customer shall be charged pro-rata for the months remaining in the Term.
5. FEES AND PAYMENT.
5.1. Fees. Customer shall pay Kadince the fees ("Fees") as set forth in the Order Form without offset or deduction. All payment obligations under any and all Order Forms are non-cancelable, and all payments made are non-refundable. Unless otherwise specified on the Order Form, (i) the Fees shall be due on or prior to the Effective Date identified on the Order Form, and thereafter on or prior to the anniversary of the Effective Date; and (ii) Kadince may, in its sole discretion, increase the amount of the Fees from time to time (but no more than once per calendar year) upon Electronic Notice to Customer.
5.2. Payment. Customer shall make all payments hereunder in US dollars within 30 days of the date on the invoice. If Customer fails to make any payment when due, without limiting Kadince’s other rights and remedies: (i) Kadince may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Kadince for all reasonable costs incurred by Kadince in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Kadince may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
5.3. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Kadince's income. While Kadince may in some circumstances collect taxes and pay such on Customer’s behalf as reflected on Customer’s invoice, Kadince shall have no ongoing obligation or responsibility to do so, and Customer acknowledges and agrees that Customer is solely responsible to determine that its taxes have been paid to the proper jurisdiction and in proper amounts and further waives and releases any claims against Kadince to the contrary.
6. CONFIDENTIAL INFORMATION.
6.1. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given Electronic Notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of this Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK.
7.1. Kadince IP. Customer acknowledges that, as between Customer and Kadince, Kadince owns all right, title, and interest, including all intellectual property rights, in and to the Kadince IP and, with respect to Third-Party Services, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Services.
7.2. Customer Data. Kadince acknowledges that, as between Kadince and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Kadince a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Kadince to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
7.3. Feedback. If Customer or any of its Authorized Users, employees, or contractors sends or transmits any communications or materials to Kadince by mail, email, telephone, or otherwise, suggesting or recommending changes to the Kadince IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Kadince is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Kadince on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Kadince is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Kadince is not required to use any Feedback.
8. DATA PRIVACY AND SECURITY.
8.1. Security Program. Each Party will: (i) comply with applicable laws and regulations applicable to its business in connection with its storage, processing, transmittal, handling, or use of Customer Data under this Agreement; (ii) implement and maintain a written information security program appropriate to the size and complexity of its business, the nature and scope of its activities, and the sensitivity of the information at issue that includes appropriate policies, procedures, and risk assessments that are reviewed at least annually; and (iii) implement and maintain reasonable security measures to protect Customer Data in accordance with accepted industry standards.
8.2. GLBA Compliance. If, in the course of its performance under this Agreement, Kadince and Customer agree in an Order Form that the Customer Data that Kadince agrees to process under this Agreement will include “Nonpublic Personal Information” about a customer of Customer (as such terms are defined in Title V of the Gramm-Leach-Bliley Act of 1999 and its implementing regulations (including the GLBA Interagency Guidelines Establishing Information Security Standards, 12 CFR 30 App B (the “Guidelines”) (collectively, “GLBA”)), then each Party will comply with the applicable requirements of the GLBA applicable to it in connection with its performance of its obligations under this Agreement.
8.3. Security Breach Response Procedures. Kadince maintains a data breach response plan in accordance with accepted industry standards (“Cyber Incident Response Plan”) and will implement the procedures required under such plan following Kadince’s discovery of a Security Breach. Kadince will notify Customer of a confirmed Security Breach as soon as reasonably practicable after Kadince becomes aware of it. Promptly following Kadince's notification to Customer of a Security Breach, the parties will reasonably cooperate with each other, as necessary, to investigate the Security Breach in accordance with Kadince's current Cyber Incident Response Plan.
8.4. Security Controls Review. On an annual basis, Kadince will use commercially reasonable efforts to obtain a security controls audit, examination, or review, of the security controls for the Platform, such as a SOC 2 Type 2 examination, performed by an independent third party based on recognized industry standards. Kadince will make a summary of the results of such controls audit, examination, or review available to Customer upon request and will timely address material exceptions.
8.5. Customer Data Download and Deletion. Upon request by Customer made by Electronic Notice no later than thirty (30) days after the effective date of termination or expiration of the Agreement (such 30-day period, the “Data Request Period”), Kadince shall make Customer Data, in its possession, available for Customer to download for a period not to exceed forty-five (45) days from Kadince’s receipt of such notice. After the Data Request Period, Kadince shall have no obligation to maintain or make Customer Data available for download, and may, at Kadince’s sole and absolute discretion, thereafter delete or destroy all Customer Data stored within the Platform, unless legally prohibited from doing so. If Customer does not request Kadince to make Customer Data, in its possession, available for Customer to download during the Data Request Period, Kadince may, at its sole and absolute discretion, thereafter delete or destroy all Customer Data stored within the Platform, unless legally prohibited from doing so. If Kadince is not reasonably able to return or securely dispose of Customer Data, including, but not limited to, Customer Data stored on backup media, Kadince will continue to protect such Customer Data in accordance with the terms of this Agreement until such time that it can reasonably return or securely dispose of such Customer Data.
9. LIMITED WARRANTY; WARRANTY DISCLAIMER.
9.1. Authority. Each Party represents and warrants that (i) it has all requisite power and authority to enter into this Agreement and consummate the transactions contemplated hereby; (ii) this Agreement is a valid and binding obligation enforceable against such party in accordance with its terms; and (iii) neither the execution, delivery and performance of this Agreement and the other agreements and instruments contemplated hereunder, nor the consummation of the transactions contemplated hereby will violate or conflict with or constitute a default under any contractual obligation.
9.2. Customer Warranties. Customer represents and warrants to Kadince that with respect to any Customer Data: (i) Customer is and shall be in compliance with all applicable laws and regulations, including, without limitation, all laws and regulations related to the collection, use, disclosure, and storage of Customer Data; (ii) Customer is and shall be in compliance with all contractual obligations and privacy policies relating to Customer Data; (iii) with respect to any Customer Data Customer or any Authorized User provides to Kadince under this Agreement or uploads to the Platform, Customer shall: (A) provide all notices and disclosures to its Authorized Users, customers, data subjects, and individuals, and (B) obtain all approvals, authorizations, and consents as are necessary or required by applicable law to authorize and enable Kadince and its Authorized Persons to store, process, transmit, handle, and use such Customer Data in order to perform the Services under this Agreement. Customer agrees that its purchase of access to the Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written comments made by Kadince, its employees, affiliates, independent contractors, agents, or partners regarding future functionality or features.
9.3. Kadince Warranties. Kadince warrants that the Services will conform in all material respects to the service levels set forth in this Agreement when accessed and used in accordance to Kadince’s instructions. Kadince does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in this Agreement. The remedies set forth in this Agreement are Customer's sole remedies and Kadince's sole liability under the limited warranty set forth in this Section. THE FOREGOING WARRANTY DOES NOT APPLY, AND KADINCE STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
9.4. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.3, THE SERVICES AND KADINCE IP ARE PROVIDED "AS IS" AND KADINCE MAKES NO WARRANTY OF ANY KIND ON ITS OWN BEHALF OR ON BEHALF OF THIRD-PARTY SERVICE PROVIDERS OR ANY KADINCE SUPPLIERS OR LICENSORS, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. KADINCE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.3, KADINCE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, KADINCE IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. WITHOUT LIMITING THE FOREGOING, KADINCE DOES NOT WARRANT WITH RESPECT TO THE SERVICES, THIRD-PARTY SERVICES, OR THOSE OF ITS SUPPLIERS AND LICENSORS THAT ALL ERRORS CAN BE CORRECTED, THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE.
10. INDEMNIFICATION.
10.1. Kadince Indemnification. Kadince agrees, at its own expense, to defend (or at Kadince’s option, settle) Customer from and against any claims of a third party to the extent claiming that the Services as provided by Kadince, when used by Customer as permitted under the Agreement, infringe(s) any valid United States copyright, patent or trademark (“IP Claim”) and shall indemnify Customer against any liabilities, obligations, damages, and penalties awarded in any final judgment, or final settlement of any IP Claim; provided that Customer: (i) promptly notifies Kadince in writing of any such IP Claim; (ii) permits Kadince to control and direct the investigation, preparation, defense, and settlement of the IP Claim; and (iii) reasonably assists and cooperates in the defense of the IP Claim. Following notice of an IP Claim or any facts that may give rise to such IP Claim, Kadince may, in its sole discretion and at its option: (A) procure for Customer the right to continue to use the Services; (B) replace the manner in which the Services are provided so long as such manner does not materially degrade the functionality thereof; or (C) modify the Services to make them non-infringing. If it is not commercially reasonable to perform any of these alternatives, Kadince shall have the option to terminate the Agreement without any further obligation to perform Services; provided, however, Kadince shall refund any prepaid Fees to Customer covering any periods after the effective date of termination.
In no event will Kadince have any obligations under this Section 10 or any liability for any claim or action to the extent the IP Claim is caused by any of the following (the "Exclusions"): (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Kadince or authorized by Kadince in writing; (ii) a modification, customization, translation, or alteration of the Services not made by Kadince; (iii) Customer's continued allegedly infringing activity after Kadince provides a non-infringing replacement in accordance with this section 10.1.; (iv) any Customer Data; (v) Customer's use of the Services in a manner in breach of the Agreement; or (vi) Third Party Services. This section 10 states Kadince's sole liability to Customer for any IP Claim.
10.2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Kadince's option, defend Kadince from and against any claims of a third party alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) alleged violation by Customer of the covenants, representations, and warranties contained in this Agreement or otherwise from Customer’s misuse of the Services; (ii) negligence or willful misconduct; (iii) use of the Services in a manner not authorized by this Agreement; (iv) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Kadince or authorized by Kadince in writing; or (v) modifications to the Services not made by Kadince, provided that Customer may not settle any Third-Party Claim against Kadince unless Kadince consents to such settlement, and further provided that Kadince will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
10.3. Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER'S SOLE REMEDIES AND KADINCE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. LIMITATIONS OF LIABILITY.
11.1. IN NO EVENT WILL KADINCE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL KADINCE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, INDEMNIFICATION, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE AMOUNT PAID AND AMOUNTS ACCRUED BUT NOT YET PAID BY CUSTOMER TO KADINCE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT FIRST GIVING RISE TO THE INITIAL CLAIM.
12. TERMS AND TERMINATION.
12.1. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect for the subscription period set forth in the Order Form (the "Initial Term"). Except as otherwise provided in the Order Form, this Agreement will automatically renew for additional successive periods of one year each unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party Electronic Notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
12.2. Termination. In addition to any other express termination right set forth in this Agreement:
12.2.1. Kadince may terminate this Agreement, effective on Electronic Notice to Customer, if Customer: (a) fails to pay any amount when due hereunder, and such failure continues more than 10 days after Kadince's delivery of Electronic Notice thereof; or (b) breaches any of its obligations under Section 2 or Section 6;
12.2.2. either Party may terminate this Agreement, effective on Electronic Notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured for a period of 60 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
12.2.3. either Party may terminate this Agreement, effective immediately upon Electronic Notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
12.3. Refund or Payment Upon Termination. If the Agreement is terminated by Customer in accordance with Section 12.2.2 or 12.2.3, Kadince shall refund to Customer any prepaid Fees covering the remaining portion of the Term from the effective date of termination. If the Agreement is terminated by Kadince in accordance with these Subscription Terms, Customer shall pay any unpaid Fees covering the period equal to the remainder of the Initial Term or then-current Renewal Term (had there not been an earlier termination), as applicable, and shall not receive a refund of any prepaid Fees. In no event will termination by any party relieve Customer of its obligation to pay any Fees payable to Kadince for the period prior to the effective date of termination.
12.4. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Kadince IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Kadince IP and certify in writing to Kadince that the Kadince IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
12.5. Survival. This Section 12 and Sections 1, 2.3, 2.4, 2.6, 3.1, 3.3, 3.5, 3.6, 6, 7, 8.5, 9.4, 11, and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
13. MISCELLANEOUS.
13.1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: first, this Agreement, excluding its Exhibits; second, the Exhibits to this Agreement as of the Effective Date; and third, any other documents incorporated herein by reference. In the event of any conflict or inconsistency between or among the Subscription Terms, the Order Form, or any addendum, the Agreement should be read giving deference in the following order of priority: (1) any Addendum, (2) the Order Form, and (3) these Subscription Terms.
13.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications must be in writing and sent via Electronic Notice addressed to the Parties at the email addresses set forth on the Order Form (or to such subsequent address provided by Customer in the Customer Identification Settings or by Kadince provided by Electronic Notice). Customer acknowledges acceptance of actual notice from any Electronic Notices prominently displayed in the Platform.
13.3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by a “Force Majeure Event,” which means any circumstances beyond such Party's reasonable control, including but not limited to acts of God; flood; fire; earthquake; explosion; war; terrorism; invasion; riot or other civil unrest; epidemic; pandemic’ strikes; labor stoppages or slowdowns or other industrial disturbances; telecommunications or Internet service interruptions or slowdowns; vandalism or “hacker” attacks (including, without limitation, by Customer’s employees or agents); or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
13.4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights granted hereunder shall be instituted exclusively in the courts of the State of Utah located in Salt Lake City, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
13.7. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party's prior written consent (not to be unreasonably withheld); provided, however, either Party may assign the Agreement, without the other Party's consent, but upon Electronic Notice to the non-assigning Party and proof of the assignee's written assumption of the obligations of the assigning Party under the Agreement, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets (collectively, a "Change of Control Event"). If a Change of Control Event occurs, Customer shall cause its acquirer to expressly assume its duties and obligations under the Agreement. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
13.8. New Charter/Entity. If Customer belongs to or is a holding company and Customer's holding company adds a new charter/entity to the holding company, or a new charter/entity desires to obtain access to the Services, Customer shall notify Kadince of such fact and the new charter/entity shall not have access to the Services under the Agreement. In those circumstances, Customer should either (i) enter into a separate agreement with Kadince with respect to provision of Services for the new charter/entity; or (ii) the holding company should enter into a separate agreement with Kadince with respect to provision of Services for all charters/entities belonging to the holding company. In the case Customer enters into a new agreement with Kadince for the holding company, Kadince will agree to terminate the Agreement as long as the terms of the new agreement are equal to or greater than the Agreement and Customer continues to be subscribed to Kadince under the new holding company agreement. Any Fees prepaid under the prior Agreement will be applied to the new agreement, charged pro-rata. If Customer is a holding company and, at any time, adds a new charter/entity to the holding company which desires to use the Services, Customer must notify Kadince immediately and agrees to add the charter/entity to the Agreement by way of an addendum and pay a prorated amount of Fees for the new Asset Size of the Customer.
13.9. Export Regulation. Each Party shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US. Each Party represents that neither party, nor their respective subsidiaries or directors, nor to either party's knowledge, their respective employees or Affiliates is: (i) included on any sanctions list administered by the United Nations, the European Union, the United States, or the United Kingdom ("Sanctions Authorities"), including without limitation the Specially Designated Nationals and Blocked Persons list; (ii) organized under the laws of or ordinarily resident in a country subject to comprehensive sanctions administered by any Sanctions Authority (collectively, "Sanctioned Jurisdictions"); (iii) the government of a Sanctioned Jurisdiction; or (iv) 50% or more, directly or indirectly, owned or controlled by or acting on behalf of, any individual, entity, or government described in (i), (ii), or (iii).
13.10. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 2 would cause Kadince irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Kadince will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
13.11. Independent Contractor. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
13.12. Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, or describe the scope or extent of such section.
13.13. Use of Name. Customer hereby authorizes Kadince to identify Customer as a customer of Kadince, and to use Customer’s name and logo in connection with any press release, any online or printed marketing materials, or for any similar use.
13.14. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Each Party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, that any digital or electronic signatures (including pdf, facsimile, or electronically imaged signatures provided by DocuSign or any other digital signature provider) appearing on this Agreement, Order Form, or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility, and that delivery of any such electronic signature to, or a signed copy of, this Agreement and such other documents may be made by facsimile, email, or other electronic transmission.