"Affiliate" means with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where "control" means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).
"Confidential Information" means this Agreement, the Kandy Technology, the Service, Documentation, Kandy pricing information, and any other information disclosed by Kandy to You in connection with this Agreement that You acting reasonably, would consider as confidential including any information of which unauthorized disclosure could be detrimental to the interests of Kandy whether or not such information is identified as Confidential Information by the Kandy.
"Customer Data" means any files, recordings, sound, music, graphics, images, code or other content provided or submitted by You or Your End Users to or through the Service including but not limited to information pertaining to You or Your End Users' IP address, username, password, name, email address and Personal Data. In no event will Customer Data include Kandy Technology, Kandy Intellectual Property Rights, Documentation or other Confidential Information.
"Documentation" means the online manuals, Service Description and help Kandy provide for use in connection with the Service.
"End User" means a customer of Yours, to whom You provide a license for use of the features, applications, data or other outputs that You generate through Your use of the Service in Your ordinary course of business.
"Kandy Technology" means the proprietary software (in all forms including source code and executable forms) and Intellectual Property Rights of Kandy and other owned Kandy technology provided via the Service, including any enhancements, modifications, and derivative works to any of the foregoing.
"Intellectual Property Rights" means worldwide patents, inventions (whether patented or not), copyrights, trademarks, service marks, trade names, domain name rights, know-how, Confidential Information, trade secret rights, moral rights and all other intellectual property rights and similar forms of protection.
"Open Source Software" means source code subject to the terms of public, free and open source licenses, including, but not limited to, the GNU General Public License and the GNU Lesser General Public License. The GNU General Public License and the GNU Lesser General Public License can be viewed at http://www.gnu.org/licenses/gpl.htmland http://www.gnu.org/licenses/lgpl.html, respectively.
"Order" means Your request for Services as submitted through the Website which identifies the Service(s) to be provided by Kandy and the fees associated therewith. Any and all Kandy accepted Orders are deemed incorporated herein by this reference.
"Output" means the features, applications, data or other outputs that You generate or obtain through Your use of the Service.
"Personal Data" means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity, or as otherwise defined by law.
"Pre-Existing IPR" of a party means any proprietary or Intellectual Property Rights of such party, or its third party licensors, that is conceived, created, or developed (i) prior to use of the Service or Website, or (ii) is entirely unrelated to any Services provided by Kandy under this Agreement and, with respect to You, does not include any portion or derivative work of Kandy Technology or Kandy Intellectual Property Rights.
"Service(s)" means, the service platform, the Website, any services as described on the Website including any associated Software Development Kits ("SDKs") and/or any ancillary products or services provided to You by Kandy.
"Service Term(s)" means the time period beginning with the first payment in full of an Order, if applicable, or beginning with your acceptance of the Terms if no charges are due, during which You may use the Service.
"Support Services" means the support services, if any, offered by Kandy and if paid in full by You as specified in the Support Services on the Website.
"General Data Protection Regulation" or “GDPR” means the General Data Protection Regulation (EU) 2016/679, as amended.
2. PROVISION OF SERVICE AND KANDY TECHNOLOGY
Access Right; License Grant. Subject to payment of any applicable fees, You shall be granted license (the "License") to use the Services as set forth in this Agreement. The Services are licensed on a subscription basis and not sold. The License shall be a non-exclusive, non-sublicensable, revocable, limited term, nontransferable right to access and use the Service including its SDKs listed on the Website to create Output, as allowed by the Service during the Service Term, solely for Your internal business purposes and to provide services to Your End Users as set forth in Section 2.3 (End User Rights). Kandy reserves all rights not expressly granted hereunder. Kandy may create and maintain administrative, support, system, and maintenance accounts within the Service, all with data access for Kandy and its assigned agents and/or other service providers, in order to deliver the Service.
Access and License Restrictions. Except as expressly set forth in this Agreement as permitted during the Service Term, You will not (i) license, sublicense, grant access or use, sell, transfer, assign, distribute, rent, lease, time share or otherwise commercially exploit the Service or Kandy Technology to any third party; (ii) modify or create derivative works based on the Service or Kandy Technology and to the extent any such derivative works are permitted to be created as set forth herein, such derivative works are owned solely by Kandy and You agree to and do hereby assign all rights, title and interest in and to any such derivative works and all associated Intellectual Property Rights to Kandy and You are not licensed to use any such derivative works absent a written agreement from Kandy granting such license; (iii) create Internet "links" to the Service or "frame" or "mirror" any content provided in connection therewith; (iv) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service or the Kandy Technology in whole or in part, except as and only to the extent this restriction is prohibited by law; (v) copy any features, functions or graphics of the Service or Kandy Technology; (vi) remove or obscure any proprietary rights or other notice contained in the Service or Kandy Technology; or (vii) disclose or publish performance benchmark results for the Service or Kandy Technology. User accounts and subscriptions cannot be shared or used by more than one individual.
End User Rights. You may, subject to the terms of this Agreement, grant to Your End Users a limited, non-exclusive, non-sublicensable, nontransferable, revocable license to use the Outputs for such End Users' internal business purposes, provided that (i) such license restricts End Users' use to that which is solely in conjunction with Kandy products and services that such End Users are licensed or otherwise authorized to use in their telecommunications networks, and (ii) such End Users agree to be bound contractually by and comply with the terms of (a) this Agreement and (b) any additional terms that Kandy may require or in Documentation with respect to any unique requirements of any Kandy Technology. You shall be solely responsible for the acts, errors or omissions of Your End Users.
3. YOUR RESPONSIBILITIES AND USE LIMITATIONS
Restrictions on Use. It is Your responsibility, and Kandy shall have no responsibility, to ensure that You have the right to use the Service in compliance with the laws where it is located, as well as where End Users are located. You represent and warrant that You and Your agents, employees, representatives, consultants or subcontractors are not persons or entities appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which Kandy is prohibited from doing business. You further represent that the Service shall not be used for or in connection with nuclear activities, the development of biological or chemical weapons, missiles, unmanned aerial vehicles, to support terrorist activities, organized crime or in any other way that would violate U.S. export controls or economic sanctions laws. You agree to promptly notify Kandy and cease use of the Service if You discover that any of the foregoing conditions apply. You will be responsible and liable for any and all access to and use of the Service by any person logging in under a user ID registered under Your account or providing and/or receiving Customer Data or other information through the Service. You acknowledge that Your access information, including user IDs and passwords, will be Your "key" to the Service and, accordingly, You will be responsible for maintaining the confidentiality and security of such access information (including each user ID and password), and consent to our collection and use of such information. Your failure to consent my inhibit your use of the Service. You will: (i) notify Kandy immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) immediately terminate access to the Service for any person or entity who You suspect or know has committed a security breach; (iii) report to Kandy immediately and use reasonable efforts to stop immediately any copying or distribution of Kandy Technology that is known or suspected by You or Your End Users; and (iv) not impersonate another Kandy authorized user or provide false identity information to gain access to or use the Service.
Customer Data. You grant Kandy and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, non-transferable (except as provided under an authorized assignment), sublicensable, limited right and license to host, cache, copy, process, store, display and retrieve information associated with the Customer Data for the purpose of and in conjunction with Your use of the Service. You warrant that You have obtained express consent from Your End Users to transfer Customer Data to Kandy and to process the Customer Data as contemplated by the Service. You agree that Kandy may transfer Customer Data to the United States and/or another country outside the European Economic Area as well as outside other countries deemed to have adequate data protection laws or alternative means (such as Standard Contractual Clauses) to facilitate such transfer(s). Kandy is a data processor (or sub-processor) acting on Your behalf and You appoint and authorize Kandy and its Affiliates and subsidiaries (and their successors and assigns, contractors and business partners) to transfer to, store and process Customer Data in any country where Kandy uses facilities in connection with the Service in order to provide the Service to You. You acknowledge and agree that Kandy may, in performing its obligations pursuant to this Agreement, be dependent upon or use Customer Data, material and other information furnished by You without any independent investigation or verification thereof, and that Kandy shall be entitled to rely upon the accuracy and completeness of such information. You acknowledge and agree that Kandy is not responsible in any manner for Customer Data, including any loss, damage or liability arising from the loss of Customer Data, and You assume all risk related to the transmission and transfer of Customer Data to the Service. You will be fully responsible for the Customer Data and will indemnify, defend and hold harmless Kandy against any claims, losses, and damages with respect to any third party claims of infringement pertaining to such Customer Data in accordance with the provisions of Section 12 (Indemnification) below and to any alleged breach of privacy rights by an End User. In addition to its other rights and remedies, Kandy may remove Customer Data from the Service at any time if Kandy in its sole discretion determines that You have violated this Agreement.
4. INTELLECTUAL PROPERTY RIGHTS.
Except as expressly set forth in Section 3 (Your Responsibilities and Use Limitations) above, as between Kandy and You, You own all Customer Data. Kandy and/or its licensors own and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Service, the Kandy Technology, including without limitation the SDKs and APIs, the Documentation, Confidential Information and any related suggestions, inventions, concepts, designs, ideas, enhancement requests, and feedback associated therewith. You acknowledge that the Kandy name, the Kandy logo, and the product names associated with the Service are Kandy trademarks, and no license to such marks is granted herein. You acknowledge and agree that (i) access to the Service by You is licensed, not sold and You acquire no ownership or other interest (other than the license rights expressly stated herein) in or to the Service, and (ii) the Service is offered as an on-line, hosted solution, and that You have no right to obtain a copy of the Service or the Kandy Technology itself. You acknowledge and agree that any Output, or Intellectual Property Rights created by You using the Service is wholly owned by Kandy. To the extent You incorporate into the Output any of Your Pre-Existing IPR into the Output, You shall continue to own such Pre-Existing IPR and grant to Kandy a royalty-free, irrevocable, sublicensable, worldwide, non-exclusive, perpetual right to (i) use, copy, modify, translate, compile, configure, create, and prepare derivative works of Your Pre-Existing IPR and to use, distribute and display Your Pre-Existing IPR, with full rights to authorize others to do the same, and (ii) exploit, make maintain, support, sell, offer for sale, test, make improvements to, distribute and import and export such Output without limitation. You represent and warrant that You have all rights and licenses necessary to grant such aforementioned rights. You shall indemnify, defend and hold harmless Kandy against any claims, losses, and damages including reasonable attorney's fees and court costs and feesarising out of any third party claims of infringement with respect to such Output, Customer Data or Kandy's use of any of Your Pre-Existing IPR in accordance with the provisions of Section 12 (Indemnification) below. You shall not assert any action or claim nor demand to restrict or interfere with Kandy's or any of its customers' use of the Outputs, or Your Pre-Existing IPR as granted herein. Nothing in this Agreement shall grant to You or Your End Users any rights or license to use any Pre-Existing IPR, Intellectual Property Rights and/or Confidential Information of Kandy, except as expressly set forth in this Agreement.
Notwithstanding anything to the contrary contained herein, You agree that Kandy shall exclusively own and may, in its sole discretion without incurring any fees or costs to You use or incorporate into the Services any suggestions, inventions, concepts, designs, ideas, enhancement requests, feedback, recommendations provided by You or End Users relating to the Services.
You may engage one or more contractors to assist You with Your creation of Output as permitted herein, provided that: (a) You provide Kandy with at least thirty (30) days' prior notice of the identity of each such subcontractor, (b) Kandy shall have the right to reject any such subcontractor at its sole discretion including without limitation if Kandy reasonably determines that such subcontractor (i) has breached the terms and conditions set forth in this Agreement, or (ii) is or may be a competitor of Kandy, in which case such subcontractor shall not be permitted access to the Service or the SDKs, (c) any approved subcontractor is bound by the same or similar obligations of confidentiality as set forth herein, (d) You ensure that such subcontractors comply with the terms and conditions of this Agreement, and (e) You shall be solely responsible for the acts errors or omissions or non-compliance of such subcontractors.
You are responsible for obtaining and maintaining any equipment and ancillary services (including the payment of any additional fees therefore) needed to connect to, access or otherwise use the Service (and, to the extent applicable, the Kandy Technology), including, without limitation, video-enabled devices, video communication services, modems, hardware, servers, software, operating systems, networking, web servers, internet and telephone service (collectively, "Equipment").
8. THIRD-PARTY PROVIDERS
Third-Party Products and Services. Kandy may provide or include in the Service or Kandy Technology certain software and/or services owned by third parties, including any Open Source Software. You acknowledge and agree that the terms relating to third-party products may be subject to additional terms and conditions required by such third party and You will abide by such terms as either (i) provided to You by Kandy or (ii) solely between You and the applicable third-party provider. To the extent that the terms of this Agreement differ from the open source licenses governing the Open Source Software, these terms are offered by Kandy alone and not by any other party. These terms do not replace or alter your rights or obligations under the open-source licenses with respect to the Open Source Software. Kandy does not warrant or support third-party products or services, or Open Source Software and expressly disclaims any warranty obligations to the fullest extent allowed by law as set forth in Section 11. (Warranty Disclaimer).
Third-Party Applications. If You install or enable any third-party applications for use in connection with the Services, You acknowledge and agree that Kandy may allow the applicable third party to access the Customer Data as required for the interoperation of such third-party applications with the Services. Kandy will not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access.
9. ORDERING AND PAYMENT
Orders. You may order Services pursuant to this Agreement by registering and submitting an Order along with payment as provided on the Website. By submitting an Order and payment You hereby authorize Kandy to charge your card each month in the amount of the fees set forth on the Website or any accrued late payment interest charges for the duration of Your Service Term. All Orders are governed by the terms and conditions of this Agreement.
Fees; Invoicing; Payment. Use of the Service is contingent upon Your payment of all fees. Fees are (i) quoted and payable in United States dollars (ii) may be based on services purchased, data volume used or on the number of users, and (iii) are fully earned and non-refundable for any reason. The number of subscriptions acquired cannot be decreased during the relevant Service Term. Fees are based on monthly periods that begin on the Service Term start date and each monthly anniversary thereof; therefore, fees for subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Service Term. Kandy reserves the right to increase prices at any time. Such increase will not impact the prices for the current month. All amounts payable will be made without setoff or counterclaim.
Audit Rights. Kandy shall have the right to inspect Your books and records with respect to Your compliance with Your obligations set forth in this Agreement and provide related information to third-parties who have a legitimate business purpose with respect to such information, as applicable. Each month You will monitor the number of End Users in Your records versus the End User subscription fees paid to Kandy. Kandy retains the right to audit use of the Service by You and Your End Users. In the event that usage is found to be greater than the usage for which fees are paid, Kandy will invoice You accordingly and You shall pay for such use. Invoicing disputes must be identified in writing within 21 days of invoice receipt. Payments of any disputed amount are due and payable upon resolution. All other amounts remain due within 30 days.
Taxes. All amounts payable are exclusive of VAT, sales, use, withholding, custom charges, duties, excise or other applicable taxes, unless otherwise stated. Such Taxes will be invoiced in addition to the price, if applicable. In the event that You provide Supplier with a valid, duly executed exemption certificate, Supplier will exempt You from Taxes in accordance with the law, effective on the date Supplier receives the exemption certificate. All Taxes shall be the financial responsibility of the Party obligated to pay such Taxes as determined by the applicable law and neither Party is or shall be liable at any time for any of the other Party's Taxes incurred in connection with or related to amounts paid under this Agreement. If either Party is audited by a taxing authority or other governmental entity the other Party agrees to reasonably cooperate with the Party being audited in order to respond to any audit inquiries in a proper and timely manner so that the audit and/or any resulting controversy may be resolved expeditiously.
Effect of Nonpayment. Kandy may, suspend or terminate Your access to the Service if You fail to maintain Your payment obligations as set forth herein. Payments not paid in full each month may incur a service charge of one and one-half percent (1.5%) per week on any outstanding balance, or the maximum legal rate allowed by law, plus all collection costs. You will continue to be charged for Services during any period of suspension. Upon termination of this Agreement, You will pay the balance due on Your account. Kandy reserves the right to impose a reconnection fee if Your account is suspended for nonpayment and You request Service reactivation. Regardless of any suspension or reconnection, following any late payment, Kandy retains the right to modify charges and fees for purchases and/or renewals and other Services as deemed necessary.
10. TERM AND TERMINATION
Term. This Agreement commences upon Your use of the Service ("Effective Date") and will continue for so long as You use the Service.
Termination by Kandy. If You breach any provision of this Agreement, Kandy has the right to terminate Your use of the Service, any Order, this Agreement or remove any Customer Data contained within the Service.
Termination by You. If You wish to terminate Your subscription You may do so upon written notice to Kandy no later than fifteen (15) days before the end of the then-current month. If You do not provide notice of termination as set forth in this Section, You will be charged, and will be obligated to pay, Service fees for the following month.
Effect of Termination; Survival. Upon the expiration or termination any Service Term: (a) any amounts (including expenses) owed to Kandy for fees applicable to the duration of the terminated Service Term, will be immediately due and payable; (b) all subscriptions and rights to use granted under this Agreement and Kandy's obligation to provide the Service and Kandy Technology, and Your and Your End User's right to access the foregoing, will terminate; (c) You shall delete any Output, code or other developments created by You using the Service; and (d) Sections 4 (Intellectual Property Rights), 12 (Indemnification), 13 (Limitation of Liability), 14 (Confidentiality), 19 (Notice), 20 (General) will survive. Kandy's termination rights hereunder shall be in addition to and not in lieu of any equitable remedies available to Kandy.
11. LIMITED WARRANTY AND DISCLAIMER OF WARRANTIES
The software is warranted to substantially conform to its published specifications, as those exist on the effective date during the subscription period, and for ninety (90) days thereafter. This warranty extends only to the service provider. Kandy's sole obligation and remedy under this warranty shall be limited to use of commercially reasonable efforts to correct the software as soon as practical after You have notified Kandy of non-conformance. Kandy does not warrant that: (1) operation of any of the software shall be uninterrupted or error free; (2) functions contained in the licensed software shall operate in combinations which may be selected for use by the End User or meet the End User’s requirements, (3) connections and access methods used by service provider or End Users shall function error free or uninterrupted, (4) devices which the End User inputs or receives data or electronic output on will support or interoperate with the software, or (5) data input, created by or stored by service provider or any End User during the use of the services will not be deleted or rendered nonrecoverable. To the maximum extent permitted by applicable law, Kandy disclaims all other warranties and makes no warranties whatsoever to the End Users regarding any hardware, software or services provided by Kandy, express and implied, statutory or otherwise, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement of intellectual property rights of a third party, custom, trade, quiet enjoyment, accuracy of informational content, or any warranties arising under any statute, course of dealing or otherwise. In no event shall Kandy be liable for the cost of procurement of substitute goods and services by End Users or for any indirect, special, exemplary, punitive, consequential or incidential damages.
Kandy disclaims any liability in regards to the use of the software clients and desktop clients for emergency 911 calling and other similar systems or use without the appropriate network design engineering in any hazardous environments requiring fail safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, weapons systems, or any other application in which the failure of the software clients and desktop clients software could lead directly to death, personal injury, or severe physical or environmental damage.
YOU WILL INDEMNIFY AND HOLD KANDY AND ITS AND THEIR EMPLOYEES, OFFICERS, DIRECTORS AND REPRESENTATIVES (EACH AN “INDEMNITEE”) AND LICENSORS HARMLESS FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, JUDGMENTS, PENALTIES, FINES AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH: (I) ANY CLAIM ALLEGING THAT YOUR DATA INFRINGES THE RIGHTS OF, OR HAS CAUSED HARM TO, A THIRD PARTY; (II) ANY CLAIM ARISING OUT OF YOUR OR YOUR END USERS' INABILITY TO USE THE SERVICE TO CONTACT EMERGENCY SERVICES; (III) A CLAIM ARISING OUT OF OR RELATING TO YOUR USE OF ANY THIRD PARTY APPLICATIONS OR SERVICES AS DESCRIBED IN SECTION 8 (THIRD PARTY PROVIDERS); (IV) A CLAIM, WHICH IF TRUE, WOULD CONSTITUTE A VIOLATION BY YOU OF YOUR REPRESENTATIONS AND WARRANTIES, OR ANY CLAIM ARISING OUT OF THE WARRANTY DISCLAIMERS SET FORTH IN SECTION 11 (WARRANTY) ABOVE; (V) A CLAIM ARISING OUT OF ANY BREACH OF ANY PRIVACY OR DATA PROTECTION LAW OR REGULATION; (VI) A CLAIM ARISING OUT OF ANY BREACH OF CONFIDENTIALITY; OR (VII) A CLAIM ARISING FROM THE BREACH BY YOU OR YOUR END USERS OF THIS AGREEMENT, (INCLUDING ANY CLAIM BASED ON OR RELATED TO ANY ACTIONS ANY INDEMNITEE MAY TAKE WITH RESPECT TO LIMITING OR CLOSING ANY OF SUCH PARTIES' ACCOUNTS DUE TO SUCH BREACH).
13. LIMITATION OF LIABILITY
EXCEPT FOR THE EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, GOODWILL, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT ITS INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE ARE A DIRECT, RATHER THAN AN INDIRECT OBLIGATION OWED TO THE OTHER PARTY AND, ACCORDINGLY, THE FOREGOING DISCLAIMER WILL NOT BE CONSTRUED TO LIMIT EITHER PARTY'S OBLIGATION TO PAY AMOUNTS TO THIRD PARTIES PURSUANT TO SUCH PARTY'S INDEMNIFICATION OBLIGATIONS HEREUNDER. EXCEPT FOR A BREACH OF SECTIONS 2 (PROVISION OF SERVICE AND KANDY TECHNOLOGY), 3 (YOUR RESPONSIBILITIES AND USE LIMITATIONS), 4 (INTELLECTUAL PROPERTY RIGHTS), OR 14 (CONFIDENTIALITY) (COLLECTIVELY, THE "EXCLUDED CLAIMS"), IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU FOR THE APPLICABLE MONTHLY FEE RELATING TO THE CLAIM. IN THOSE STATES AND JURISDICTIONS THAT DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, KANDY'S LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW.
You may not disclose, or permit to be disclosed, Confidential Information to any third party without Kandy's prior written consent, except that Customer may disclose Confidential Information solely to Your employees and/or subcontractors who have a need to know and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. You agree to exercise due care in protecting Confidential Information from unauthorized use and disclosure, and in any case will protect the Confidential Information to the same extent that You protect Your own confidential information of a similar nature, but in no event less than reasonable care.
15. PERSONAL DATA
16. U.S. GOVERNMENT.
Services and documentation related thereto acquired with United States Government funds or intended for use within or for any United States federal agency are provided with restricted rights in accordance with Federal Acquisition Regulation 52.227.19 or as set forth in the particular department or agency regulations or rules of particular contract which provides Kandy equivalent or greater protection.
17. EXPORT AND TRADE COMPLIANCE
Import and Export Controls. You acknowledge that the Services may be subject to import and export controls laws and regulations of the United States and other foreign governments. You shall comply with such laws and regulations and agree to obtain all required U.S. or foreign government authorizations or licenses prior to exporting, re-exporting or transferring Services. You shall not divert, re-route, or otherwise deliver Services to destinations subject to embargoes or sanctions under US law or any known person or entity on a restricted or denied party list.
Record Keeping and Audits. You shall maintain a record of exports, re-exports, sales, re-sales, transfers, and re-transfers of Service undertaken by You for a period of five years from the import dates or the period required by applicable laws or regulations, whichever is longer. You agree to permit audits by or on behalf of the government officials as may be required under the applicable laws and regulations. If You export or re-export any Products to countries outside the United States, then prior to doing so, You shall notify Kandy and Kandy shall provide You an End User Certificate and Enhanced Proliferation Control Initiative ("EUC EPCI") document which You shall review, execute and provide to Kandy.
No Violations of US Foreign Corrupt Practices Act, UK Bribery Act, or Similar Laws. You hereby agree that neither Yourself, nor any of Your directors, shareholders, officers, employees, agents, subcontractors or other third parties performing services for or on Your behalf will make or have made or offered, or caused to be made or offered, any payment, loan, gift of money or anything of value or other advantage, directly or indirectly to: (a) any official or employee of any government, or any agency or instrumentality thereof; (b) any political party or official thereof or any candidate for political office; (c) any individual who holds any legislative, administrative or judicial position, exercises a public function, or is an official or agent of a public international organisation; or (d) any other person, under circumstances in which such person, its directors, employees or agents know, or have reason to know, that all or any portion of such money or thing of value or other advantage will be offered or given, directly or indirectly, to any person named in clauses (a), (b) or (c) above to influence a decision or to gain any advantage for itself, its directors, employees or agents, or affiliates, or directors, employees or agents or their affiliates or other third parties performing services for or on Your behalf, in connection with any transaction relating to this Agreement which could result in a violation of the US Foreign Corrupt Practices Act, the UK Bribery Act or any applicable corrupt practices law or regulation, order, decree or directive having the force of law and relating to bribery, kick-backs, or similar business practices. Any breach of this clause shall be considered an irrevocable breach of this Agreement and shall be cause for immediate termination of the Agreement.
18. TRADEMARKS AND BRANDING.
Unless approved by Kandy in writing, neither You nor any End User shall use Kandy's trademarks, service marks, logos, brands or references to same in its marketing, sales, distribution and representations to third parties. You shall use Your own non-conflicting trademarks, logos, brands and other representations ("Marks") in relation to its delivery of Services and You shall ensure that such Marks do not present the Services or Kandy's role in the provision of such Services negatively or in a derogatory manner. You and End User shall cease use of such Marks immediately if Kandy notifies You of Kandy's objection to the use of such Marks for the foregoing reasons.
Notices to You. Within thirty (30) days following the commencement of the Service, Customer agrees to add kandy.io, go.kandy.io, and any other Kandy-specified Service-related email domain(s) to Customer's whitelist, in order to facilitate the transmission and receipt of Service-related emails. Kandy may, from time to time, provide Customer notices concerning its use of the Service on the Service portal. Such notices include but are not limited to planned downtime, unplanned downtime or account notifications. Customer acknowledges that such notices may be the sole and exclusive notice Customer receives from Kandy regarding the Service and that Kandy shall have no liability to Customer for such notices.
Notices to Kandy. Notices to Kandy will be sent by first-class mail or prepaid post, and will be deemed given 72 hours after mailing. Customer's notices will be addressed to: Kandy c/o American Virtual Cloud Technologies 1720 Peachtree Street, Suite 629 Atlanta, GA 30309, USA
Neither party hereto may assign its rights or obligations hereunder without first obtaining the written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, a party may assign any or all of its rights or obligations by written notice but without the prior written consent of the other party to (i) an entity that controls or is controlled by, or is under common control with such party, or (ii) any entity that acquires a majority of the party's stock or substantially all of the party's assets to which this Agreement relates, provided any such entity agrees to be bound by and perform in accordance with this Agreement as if it were an original party. Any purported assignment in violation of this covenant shall be null and void. This Agreement will be governed by the under the laws of the State of Georgia without regard to principles of conflict of laws and as if this Agreement were applicable between parties domiciled within the State of Georgia. All disputes, claims or controversies arising out of or related to this Agreement will be brought exclusively in the federal or state courts of Georgia and each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THIS AGREEMENT. Except as provided in Sections 11 (Warranty) and 12 (Indemnification), the parties' rights and remedies hereunder are cumulative. You acknowledge that the Service and Kandy Technology contain Kandy's valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to Kandy for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy in addition to its other remedies provided herein or at law. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between You and Kandy as a result of this Agreement or use of the Service. If You are a branch agency or instrumentality of the United States Government, the following provision applies. The Kandy Technology and Documentation are comprised of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 22.7202-3. The failure of Kandy to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing. No modification hereof will be effective unless in writing and signed by both parties. If any provision or provisions of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Non-performance of either party shall be excused, and the nonperforming party shall have no liability to the other party, except for payment obligations, to the extent that performance is rendered impossible by strike, war, fire, flood, pandemic, governmental acts or orders or restrictions, acts of terrorism or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming party.Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. As used in this Agreement, the word "including" means "including but not limited to." This Agreement comprises the entire agreement between You and Kandy and supersedes all prior or contemporaneous negotiations, discussions, understandings, or agreements, whether written or oral, between the parties regarding its subject matter.