Client End User License Agreement
PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY. IT CONTAINS VERY IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS WELL AS LIMITATIONS AND EXCLUSIONS WHICH APPLY TO THE LICENSE OF KANDY (“KANDY”) SOFTWARE PRODUCTS. THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU AND KANDY. BY INSTALLING AND/OR USING THE SOFTWARE, YOU AGREE TO ABIDE BY ALL OF THE TERMS AND CONDITIONS STATED OR REFERENCED UNDER THIS EULA. IF YOU DO NOT AGREE TO ABIDE BY THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE. YOU MUST ACCEPT AND ABIDE BY THESE EULA TERMS AND CONDITIONS TO USE THE SOFTWARE. ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THESE TERMS AND CONDITIONS WILL NOT BE ACCEPTED BY KANDY AND WILL NOT BE PART OF THIS EULA.
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Index
3. US Government Restricted Rights Notice
1. License
Subject to Customer’s compliance with the terms and conditions of this EULA (including but not limited to payment of all applicable fees), where “Customer” is the end user of the Product, who acquires the Product(s) from a licensed Kandy partner, Kandy grants Customer a nonexclusive, temporary, revocable subscription, nontransferable license to use the Product object code solely for its internal business purposes as is further detailed in the [Subscription Agreement] with Customer with which it is was first supplied. Customer may not permit use of the Product by another party (including but not limited to network, remote computing services or timesharing use) without the prior written consent of Kandy; provided, however, that Customer may use the Products to provide voice, data, video and other communications management services to those clients of Customer subject to such clients of Customer obtaining such services from Customer under the provisions of a separate communications services agreement as part of Customer’s business and agreeing to the terms and conditions of this EULA. Customer may reproduce one copy of the Products solely for back-up purposes. Customer may not copy, translate, modify or adapt the Products or incorporate them, in whole or any part, in any other product, create derivative works based on the Products, or license others to reproduce any copies of the Products, and may not decompile, disassemble or reverse engineer the Products, or any component thereof. The Products are licensed, not sold. Excepted as expressly licensed hereunder, Kandy (and its licensors) retains all rights, title and interest, including all intellectual property rights, in the Products. The Products are protected by copyright and other applicable intellectual property laws and treaties. Customer will ensure that all proprietary notices affixed to or displayed on the Products will not be removed or modified. Software licensing information for each Product may be found in the applicable Product description; information that accompanies the Product; and in the quotation (the “Software Licensing Product Information”). Software Licensing Product Information for each Product is available upon written request. Customer is not allowed to install, use, or copy any Product for which it does not have a proper license for the Product, nor obtain as applicable future updates to such Products. Third-party software, is licensed under the applicable third party software license and subject solely to such terms and conditions. Kandy’s suppliers and licensors are hereby deemed to be third party beneficiaries of this EULA with the right to enforce the obligations and benefits of the protections with respect to the Customer as set forth herein.
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2. Non-U.S. Shipments
Shipments to non-US destinations must comply with applicable export and import regulations. Customer is solely responsible for securing import license(s), local customs clearance and paying all duties, taxes and other charges. Customer will indemnify and hold Kandy harmless from and against claims, losses, costs, or liability, due to Customer’s breach hereof.
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3. US Government Restricted Rights Notice
Distribution and use of products including computer programs and any related documentation and derivative works thereof, to and by the US Government, are subject to the Restricted Rights provisions of FAR 52.227-19, paragraph (c)(2) as applicable, except for purchases by agencies of the Department of Defense (DOD). If the Product is acquired under the terms of a Department of Defense or civilian agency contract, the Product is “commercial item” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) of the DoD FAR Supplement and its successors. All U.S. Government end users acquire the software with only those rights set forth herein. Manufacturer is Kandy 1720 Peachtree Street – Suite 629, Atlanta GA 30309. All rights reserved under US copyright laws.
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4. Limited Warranty
Kandy warrants that Kandy Software Products will conform substantially to Kandy’s published user documentation as of the date of Product shipment, but in no event for less than ninety (90) days. . Upon prompt written notice from Customer to Kandy, but in no event less than thirty (30) days after discovery of an alleged non-conformity, Kandy will use commercially reasonable efforts to repair or replace non-conforming goods. Kandy will have no obligation hereunder if its tests disclose that the alleged defect is due to causes not within Kandy’s control, including alteration or abuse of the Software Product. This limited warranty is void if failure of the Software Product has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement of Software Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Kandy will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with Kandy’s warranty remedy procedures. Neither these remedies nor any product support services offered by Kandy are available without proof of purchase upon request. Kandy’s sole liability, and Customer's sole and exclusive remedy, for defects, is limited to the express remedies set forth herein. Software Products are not warranted to be error free. Kandy MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH THIS AGREEMENT. ALL OTHER WARRANTIES AS TO THE QUALITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED.
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5. Limitation of Liability
KANDY IS NOT LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS, FORESEEABLE OR UNFORESEEABLE, OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL, LOST OR DAMAGED DATA OR SOFTWARE, LOSS OF USE OF PRODUCTS, OR DOWNTIME) (“LOSS”) ARISING FROM THE LICENSE AND DELIVERY OF SOFTWARE PRODUCTS OR ANY OTHER ACT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, KANDY’S MAXIMUM LIABILITY FOR DIRECT DAMAGES, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE PRICE ACTUALLY PAID FOR THE AFFECTED PRODUCT IN THE TWELVE MONTHS PRIOR TO FIRST OCCURRENCE OF THE LOSS. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY EXCLUSIVE REMEDIES. NO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS HEREBY INTENDED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES AND THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY.
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6. Termination
Kandy may terminate this EULA at any time if Customer fails to comply with the terms and conditions hereunder. In such event, Customer must immediately cease use of the Product and related documentation and return all copies of such to Kandy.
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7. Audit
Except as otherwise agreed in writing, Kandy reserves the right to audit Customer’s use of the Products upon reasonable notice during regular business hours. If such audit reveals that Customer has underpaid fees to Kandy, Customer shall promptly pay to Kandy such fees for any underpayment at the prices previously agreed for such Products.
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8. Emergency calls
EMERGENCY CALLS USING KANDY’S SOFTCLIENT REQUIRE DEVICE SETUP, CONFIGURATION, AND INFORMATION ABOUT THE PHYSICAL LOCATION OF THE DEVICE AT THE TIME AN EMERGENCY CALL IS PLACED. EMERGENCY CALLS MADE THROUGH USE OF KANDY’S SOFTCLIENT ARE ROUTED TO A PUBLIC EMERGENCY RESPONSE CENTER IS BASED ON ONE OR MORE OF THE FOLLOWING CRITERIA, WHICH MAY BE IMPACTED BY THE CAPABILITIES OF THE UNDERLYING EMERGENCY CALL SERVICE PROVIDER AND/OR THE LOCAL PUBLIC EMERGENCY RESPONSE CENTER: (1) THE GEOLOCATION, IF AVAILABLE, OF THE SOFTCLIENT USER OBTAINED FROM THE DEVICE USED AT THE TIME OF THE EMERGENCY CALL; (2) THE CIVIC ADDRESS ASSOCIATED WITH THE PHONE NUMBER ASSIGNED TO THE SOFTCLIENT USER, IF PROVIDED AND CONFIGURED BY THE ADMINISTRATOR; OR (3) THE ADDRESS VERBALLY COMMUNICATED BY THE SOFTCLIENT USER TO AN EMERGENCY RESPONSE OPERATOR LOCATED AT A NATIONAL EMERGENCY CALL RESPONSE CENTER. EMERGENCY CALLS DIALED USING KANDY’S SOFTCLIENT ON A MOBILE DEVICE WILL BE ROUTED TO THE DEVICE’S CELLULAR DIALER AND THE MOBILE NETWORKS’ WIRELESS CARRIER. THE WIRELESS CARRIER WILL ROUTE THE EMERGENCY CALL OVER ITS MOBILE NETWORK INFRASTRUCTURE. IF CELLULAR SERVICE IS NOT AVAILABLE, AN EMERGENCY CALL CANNOT BE PLACED. IF THE VOICE SERVICE YOU OBTAIN FROM THE WIRELESS CARRIER IS SUSPENDED OR TERMINATED, MAKING AN EMERGENCY CALL WILL NOT BE POSSIBLE. KANDY MAKES COMMERCIALLY REASONABLE EFFORTSCORRECT ROUTING AND DELIVERY OF EMERGENCY CALLS BUT CANNOT GUARANTEE THAT ALL EMERGENCY CALLS WILL BE ROUTED TO THE CORRECT LOCAL PUBLIC EMERGENCY RESPONSE CENTER IN ALL CASES.
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9. Personal data - GPDR
Kandy strives to be and remain compliant with the requirements of the GDPR and other privacy laws and regulations with respect to the collection, use and disclosure of personal information. If you have any questions about our compliance with the GDPR, please contact our Privacy Officer at privacy@kandy.io. For purposes of the GDPR, Kandy is generally considered a “controller” – that is, an entity that determines the purposes and means of the processing of the personal data. Kandy will only collect, use and disclose personal data to enable the correct functionality of the service. By accepting this EULA, you are entering a contract and personal data will be lawfully processed in accordance with the GDPR.
We store Personal Data on servers within the European Union and the United States of America. for subscribers in those regions. In case the servers are located in the USA, we have entered into, or are entering into, appropriate data protection agreements with vendors and suppliers using Standard Contractual Clauses acceptable to the U.S. Department of Commerce and the European Commission, until such time as a new data protection framework has been agreed upon.
The Personal Data is necessary for the correct operation of the Service. They will be processed as long as the service is in use. In case you decide to stop using the Service and uninstall the related apps, all Personal Data will be removed from our servers within a period of 30 days, with the exception of data we are required to hold for compliance with a legal obligation or for billing purposes
You have the right to request erasure of your Personal Data. To do so, uninstall the apps and the data will be removed automatically. The service depends on the Personal Data being processed and cannot work correctly without it.
Collected personal data
- SIP Account Credentials: Required for basic operation of the softclients. They are being used to register the account on the server and for all communication services.
- IP Addresses: When using features which require server components , the IP address of the softclient may be logged by the servers. The logs are automatically rotated and the information in them is only processed when troubleshooting specific issues, or when required by law.
- Usage Data: The servers collect information whether the softclient has been actively used within the current month, for accounting/billing purposes. The data has a form of pseudonymized identifier which is reported by the app when it is used and the time since the last report is more than 14 days.
- Call logs: The servers collect a record of call attempts and received calls for billing purposes or when required by law.
You have the right to request a copy of your Personal Data in a portable format. We will need your SIP username and password to make sure we give copy of the data to the right person. If you don’t know your SIP username and password, we will need to verify your identity and right to this information through other means of identification.
You have the right to lodge a complaint with a supervisory authority. Please review our Privacy Policy for how to contact the correct supervisory authority, and to learn more about how Kandy protects your Personal Data.
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10. Miscellaneous
This EULA is the entire agreement between Customer and Kandy relating to the Products and supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. Customer may not assign or transfer its rights hereunder. This EULA is exclusively governed by and construed in accordance with the substantive and procedural laws of the United States and the State of Delaware, except that body of Delaware law concerning conflicts, and you agree to submit to the exclusive jurisdiction of, and venue in, the courts of Delaware in any dispute arising out of or relating to this EULA (unless otherwise expressly agreed in writing with Kandy). The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this EULA.
The failure of either party to enforce any of the terms hereof will not be construed as a waiver of future enforcement of that or any other term. “Products” or “Software Products” means software products offered for licensing by Kandy.
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