Effective starting June 24, 2023
This Kathryn Aragon Media Software License Agreement (the “Agreement”) is between you and Kathryn Aragon Media (“KA Media” or “we”), the entity that owns the Software that you are accessing or using listed here. If you are agreeing to this Agreement on behalf of your company, government, or other entity for which you are acting as an employee, official, or representative, then “you” means your entity, and you are binding your entity to this Agreement. KA Media may modify this Agreement from time to time, subject to the terms in Section 19 (Changes to this Agreement) below.
The “Effective Date” of this Agreement is the date which is the earlier of (a) your initial access to or use of the Software (as defined below) or (b) the effective date of the first Order referencing this Agreement.
You indicate your assent to be bound by this Agreement when you click on the “I agree” (or similar button or checkbox) that is presented to you at the time of your Order, or by adding the Software to your website, or by using or accessing the Software. If you do not agree to this Agreement, do not use or access the Software or add it to your website.
1. Scope of Agreement
1.1. Software. This Agreement governs your purchase and use of KA Media’s Software, Support and Maintenance for the Software and/or Solution, and any Additional Services, as well as any future purchases made by you that reference this Agreement. This Agreement includes each Product or Solution Order, the KA Media Policies, the Product-Specific Terms, and any other referenced policies and terms. The Software and its permitted use are further described in the Documentation. The term “Software” includes Documentation unless otherwise specified.
1.2. Agency Services. This Agreement does not apply to other services provided by AccessXL, such as content Remediation, Training Services, or other solutions provided by KA Media that require a separate agreement.
2. Accounts; Authorized Users
2.1. Account Registration. You must register for an account with us in order to place Orders or access or receive Software. Your registration information must be accurate, current and complete. You must keep your registration current so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account, including Orders made or Apps enabled (which may incur fees). If you order Software through a Reseller (defined in Section 7.8), then you are solely responsible for (i) any access by Reseller to your account and (ii) any related rights or obligations in your applicable agreement with the Reseller.
2.2. Authorized Users and Domains. Only Authorized Users may access and use the Software. Some Software may be licensed to a domain rather than an individual user, in which case, the term “User” will refer to the authorized Domain. Some Software may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. You are responsible for compliance with this Agreement by all Authorized Users, including what Authorized Users do with your data, and for all fees incurred by Authorized Users (or from adding Authorized Users). All use of Software must be solely for the benefit of you or your Affiliates (except as expressly permitted in Section 2.3 below) and must be within the Scope of Use.
2.3. Secondary Users and Domains. You may not use KA Media’s Software for purposes other than its intended use or application. You may not grant access to Secondary Users or Domains unless specifically allowed in your Order, in which case, you must follow the intended use and assignment of Authorized Users specified in the terms of your Order. You are responsible under Section 2.2 (Authorized Users and Domains) for all Secondary Users as “Authorized Users” and are otherwise solely responsible for your own products, support offerings and Secondary relationships. Notwithstanding anything to the contrary in this Agreement, KA Media has no direct or indirect warranty, indemnity or other liability or obligations of any kind to Secondary Users.
3. Use of the Software
3.1. Your License Rights. Subject to the terms and conditions of this Agreement, KA Media grants you a non-exclusive, non-sublicensable and non-transferable license to install and use the Software during the applicable License Term for your own business purposes, in accordance with this Agreement, your applicable Scope of Use, the Documentation, and all Laws.
3.2. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) reproduce, modify, adapt, or create derivative works of any part of the Software; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Software to a third party; (c) use the Software for the benefit of any third party; (d) incorporate the Software into a product or service you provide to a third party; (e) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit your use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Software, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in the Software; (h) use the Software for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Software; or (j) encourage or assist any third party to do any of the foregoing.
3.3. Number of Instances. Unless otherwise specified in your Order, for each Software license that you purchase, you may install one (1) production instance of the Software on a system or domain owned or operated by you or one of your Authorized Users.
3.4. Product-Specific Terms. Some Software may be subject to additional terms specific to that Software as set forth in the Product-Specific Terms. By accessing or using a product covered by the Product-Specific Terms, you agree to the Product-Specific Terms.
3.5. Modifications. You may not modify, develop fixes or customizations, add features, combine with other software, including open source software, or otherwise modify the Software.
3.6. Attribution. In any use of the Software, you must not remove, obscure, or alter in any way the attribution to KA Media or divisions of KA Media.
3.7. System Requirements. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software. KA Media will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by KA Media or its affiliates, partners, or divisions.
3.8. Indemnification by You. You will defend, indemnify and hold harmless KA Media and its affiliates, partners, and divisions from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against KA Media (a) arising from or related to your breach of Section 2.3 (Secondary Users) or any claims or disputes brought by Secondary Users arising out of their use of the Software; (b) by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications of the Software) or your breach of Section 3.5 (Modifications); (c) by a third party related to your Customer Materials, as defined in Section 6.2(b); or (d) by a third party relating to any non-KA Media user experience, content, or data provided by or used by you or your Secondary Users in connection with the Software. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of KA Media at your expense.
4. Apps and Third-Party Products.
You (including your Authorized Users and Domains) may choose to use or procure other third-party products or services in connection with the Software, including Third Party Apps or implementation, customization, training or other services. Your receipt or use of any third-party products or services is subject to a separate agreement between you and the third-party provider. If you enable or use third-party products or services with the Software, you acknowledge that the third-party providers may access or use your data as required for the interoperation of their products and services with the Software. This may include transmitting, transferring, modifying or deleting your data, or storing your data on systems belonging to the third-party providers or other third parties. Any third-party provider’s use of your data is subject to the applicable agreement between you and such third-party provider. We are not responsible for any access to or use of your data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use your data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third-party provider. KA MEDIA DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.
5. Privacy Terms.
KA Media may collect certain data and information from you and Secondary Users in connection with your and Secondary Users’ use of the Software and otherwise in connection with this Agreement. All such data and information will be collected and used by KA Media in accordance with KA Media’s Privacy Policy, which you acknowledge.
6. KA Media Commitments
6.1. Support and Maintenance. During the period for which you have paid the applicable Support and Maintenance fee, KA Media will provide Support and Maintenance for the Software in accordance with the terms of your Order (if applicable). Support and Maintenance for Software includes access to New Releases, if and when available.
6.2. Additional Services. Subject to this Agreement, you may purchase Additional Services from KA Media, which KA Media or a division of KA Media will provide to you pursuant to the applicable Order. Additional Services may be subject to additional policies and terms as specified by KA Media.
(a) KA Media Deliverables. KA Media will retain all right, title, and interest in and to any materials, deliverables, modifications, derivative works, or developments that KA Media provides in connection with any Additional Services (“KA Media Deliverables”). You may use any KA Media Deliverables provided to you only in connection with the Software, subject to the same usage rights and restrictions as for the Software. For clarity, KA Media Deliverables are not considered Software, and any Software (including any New Release) is not considered a KA Media Deliverable.
(b) Customer Materials. You agree to provide KA Media with reasonable access to your materials, systems, personnel, or other resources (including your instances of the Software) as reasonably necessary for KA Media’s provision of Additional Services (“Customer Materials”). If you do not provide KA Media with timely access to Customer Materials, KA Media’s performance of Additional Services will be excused until you do so. You retain your rights in your Customer Materials, subject to KA Media’s ownership of any underlying Software, KA Media Deliverables, or other KA Media Technology. KA Media will use Customer Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Customer Materials to provide them to KA Media for such purposes.
7. License Term, Returns and Payment
7.1. License Term and Renewals. The License Term and Support and Maintenance period will be indicated in the Order (as applicable). The License Term and any applicable service periods will commence on the Order date (unless a different start date is designated in the Order) and expire on the expiration date indicated in your account. Unless earlier terminated in accordance with this Agreement, each right to use Software will expire at the end of the applicable License Term. Unless you have selected the “auto renewal” option in your account, any renewals must be mutually agreed upon by the parties in writing. All renewals are subject to the applicable Software or Support and Maintenance continuing to be offered and will be charged at the then-current rates.
7.2. Delivery. We will deliver the applicable license keys or code to your account representative no later than when we have received payment of the applicable fees. You are responsible for verifying that we have received payment and your Order has been processed, and for providing the necessary information to set up the account. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of the Software, and you acknowledge that KA Media has no further delivery obligation with respect to the Software after delivery of the license keys and/or code.
7.3. Return Policy. As part of our commitment to customer satisfaction, you may terminate your initial Order of the applicable Software under this Agreement, for no reason or any reason, by providing notice of termination and returning any applicable Software to KA Media no later than thirty (30) days after the Order date for such Software. In the event you terminate your initial Order under this Section 7.3, KA Media may disable the license key that allowed the Software to operate and, at your request, KA Media will refund you the amount paid under such Order. This termination and refund right applies only to your initial Order and only if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that KA Media may change this practice in the future in accordance with Section 19 (Changes to this Agreement).
7.4. Increased Scope of Use. During your License Term, you may increase your Scope of Use (e.g., adding Authorized Users, domain licenses, copies, or instances) by placing a new Order or, if made available by KA Media, directly through the applicable Software. Any increases to your Scope of Use will be subject to additional fees, as set forth in the applicable Order.
7.5. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a purchase order number is required in order for an invoice to be paid, then you must email such purchase order number to your account manager at KA Media or the applicable reseller. Other than as expressly set forth in Section 7.3 (Return Policy), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, expenses and unpaid fees, as applicable.
7.6. Taxes. Your fees under this Agreement exclude any taxes or duties payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by KA Media, you must pay to KA Media the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to KA Media any such exemption information, and KA Media will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
7.7. Withholding Taxes. You will pay all fees net of any applicable withholding taxes. You and KA Media will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If KA Media qualifies for a tax exemption, or a reduced treaty withholding rate, KA Media will provide you with reasonable documentary proof. You will provide KA Media reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
7.8. Reseller Orders. This Section 7.8 applies if you purchase the Software, Support and Maintenance or any Additional Services through an authorized partner or reseller of KA Media (“Reseller”).
(a) Instead of paying KA Media, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. KA Media may suspend or terminate your rights to use Software if KA Media does not receive the corresponding payment from the Reseller.
(b) Instead of an Order with KA Media, your order details (e.g., Software, Scope of Use and License Term) will be as stated in the order placed with KA Media by the Reseller on your behalf, and the Reseller is responsible for the accuracy of any such order as communicated to KA Media.
(c) If you are entitled to a refund under this Agreement, then unless otherwise specified by KA Media, KA Media will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.
(d) Resellers are not authorized to modify this Agreement or make any promises or commitments on KA Media’s behalf, and KA Media is not bound by any obligations to you other than as set forth in this Agreement.
(e) The amount paid or payable by the Reseller to us for your use of the applicable Software under this Agreement will be deemed the amount actually paid or payable by you to us under this Agreement for purposes of calculating the liability cap in Section 15.2 (Liability Cap).
7.9. Future Functionality; Separate Purchases. You acknowledge that the Software and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Software and Additional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Software beyond the current License Term or any New Releases), or dependent on any oral or written public comments made by KA Media regarding future functionality or features.
8. No-Charge Software.
We may offer certain Software (including some KA Media Apps) to you at no charge, including free accounts, trial use, and Beta Versions as defined below (collectively, “No-Charge Software”). Your use of No-Charge Software is subject to any additional terms that we specify and is only permitted during the License Term we designate (or, if not designated, until terminated in accordance with this Agreement). Except as otherwise set forth in this Section, the terms and conditions of this Agreement governing Software, including Section 3.2 (Restrictions), fully apply to No-Charge Software. We may terminate your right to use No-Charge Software at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta versions of Software, and any pre-release and beta features within generally available Software, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Software. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to use Beta Versions, but the Beta Versions will still remain subject to this Section 8. All information regarding the characteristics, features or performance of any No-Charge Software (including Beta Versions) constitutes KA Media’s Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Software, including any Support and Maintenance, warranty, and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, KA MEDIA ACCEPTS NO LIABILITY TO YOU IN RESPECT OF NO-CHARGE SOFTWARE.
9. License Certifications and Audits.
At our request, you agree to provide a signed certification that you are using all Software pursuant to the terms of this Agreement, including the Scope of Use. You agree to allow us, or our authorized agent, to audit your use of the Software (including that of your Authorized Users). We will provide you with at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. We will bear all out-of-pocket costs that we incur for the audit, unless the audit reveals that you have exceeded the Scope of Use. You will provide reasonable assistance, cooperation, and access to relevant information or systems in the course of any audit at your own cost. If you exceed your Scope of Use, we may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to KA Media at law or equity or under this Agreement. To the extent we are obligated to do so, we may share audit results with certain of our third-party licensors or assign the audit rights specified in this Section 10 to such licensors.
10. Ownership and Feedback.
The Software is made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. KA Media and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to KA Media Technology (including the Software). From time to time, you may choose to submit Feedback to us. KA Media may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits KA Media’s right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
11. Confidentiality.
Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any KA Media Technology and any performance information relating to the Software will be deemed Confidential Information of KA Media without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 11 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 11. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
12. Term and Termination
12.1. Term. This Agreement is effective as of the Effective Date and continues until expiration of all License Terms, unless earlier terminated as set forth herein.
12.2. Termination for Cause. Either party may terminate this Agreement (including all related Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
12.3. Termination for Convenience. You may choose to stop using the Software and terminate this Agreement (including all Orders) at any time for any reason upon written notice to KA Media or your Account Manager, but, unless you are exercising your right to terminate early pursuant to Section 7.3 (Return Policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current License Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
12.4. Effects of Termination. Upon any expiration or termination of this Agreement, your license to the Software terminates (even if the License Term is identified as “perpetual” or if no expiration date is specified in your Order) and you must cease using and delete (or at our request, return) all Software and Confidential Information or other materials of KA Media in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. If this Agreement is terminated by you in accordance with Section 12.2 (Termination for Cause), KA Media will refund you any prepaid Software fees covering the remainder of the then-current License Term after the effective date of termination. If this Agreement is terminated by KA Media in accordance with Section 12.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current License Term after the effective date of termination. In no event will termination relieve you of its obligation to pay any fees payable to KA Media for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
12.5. Survival. The following Sections will survive any termination or expiration of this Agreement: 3.2 (Restrictions), 3.8 (Indemnification by You), 4.1 (Third Party Products), 7.5 (Payment), 7.6 (Taxes), 8 (No-Charge Software) (disclaimers and use restrictions only), 9 (License Certifications and Audits), 10 (Ownership and Feedback), 11 (Confidentiality), 12 (Term and Termination), 13.3 (Warranty Disclaimer), 14 (Limitations of Liability), 16 (Dispute Resolution), 17 (Export Restrictions), and 20 (General Provisions).
13. Warranties and Disclaimer
13.1. General Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. If you are an entity, you represent and warrant that this Agreement and each Order is entered into by an employee or agent of such entity with all necessary authority to bind such entity to the terms and conditions of this Agreement.
13.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 13.1 (GENERAL WARRANTIES), ALL SOFTWARE, SUPPORT AND MAINTENANCE AND ANY ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND KA MEDIA AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. KA MEDIA WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF KA MEDIA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER KA MEDIA NOR ANY OF ITS THIRD-PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY SOFTWARE OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SOFTWARE (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ERRORS OR DEFECTS WILL BE CORRECTED; (E) THE SOFTWARE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE SOFTWARE PROTECTS YOU FROM LITIGATION. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
14. Limitations of Liability
14.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, LAWSUITS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
14.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
14.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in this Agreement, and (3) your breach of Section 3.2 (Restrictions) or of Section 2 (Authorized Use) or of Section 4 (Apps and Third Party Products).
14.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 14 (Limitations of Liability) apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
15. Publicity Rights.
We may identify you as a KA Media customer in our promotional materials. We will promptly stop doing so upon your request sent to KathrynAragon.com.
16. Dispute Resolution
16.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 16.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 16.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
16.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of Nevada, USA, and each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of the State or Federal court in Las Vegas, Nevada, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Las Vegas, Nevada, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
16.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 16.1 (Informal Resolution) and Section 16.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent KA Media from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
16.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.
17. Export Restrictions.
The Software is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your download of, access to, and use of the Software. You shall not (and shall not allow any third party to) remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
18. Third Party Code.
The Software may include code and libraries licensed to us by third parties, including open source software. You understand that the applicable Commercial Component Licensor retains all ownership and intellectual property rights to the Commercial Component. Commercial Component Licensors (and any other third-party licensors of any components of the Products) are intended third-party beneficiaries of the Agreement with respect to the items they license and may enforce the Agreement directly against you. However, to be clear, Commercial Component Licensors do not assume any of KA Media’s obligations under the Agreement. To the maximum extent permitted by applicable law, no Commercial Component Licensor(s) will be liable to you for any damages whatsoever.
19. Changes to this Agreement.
19.1. Modifications Generally. We may modify the terms and conditions of this Agreement (including KA Media Policies) from time to time, with notice given to you by email, through the Software or through our website.
No-Charge Software: You must accept the modifications to continue using the No-Charge Software. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Software.
Paid Licenses: Typically, when we make modifications to the main body of this Agreement (excluding the KA Media Policies), the modifications will take effect at the next renewal of your License Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 7.1 (License Term and Renewals). In some cases, in order to comply with Laws, or as necessary for new features, we may specify that such modifications become effective during your then-current License Term. If the effective date of such modifications is during your then-current License Term and you object to the modifications, then your exclusive remedy is to terminate your affected Orders upon notice to us, and we will refund to you any fees you have pre-paid for use of the affected Software for the terminated portion of the applicable License Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of this Agreement in effect at the time of the Order.
KA Media Policies: Our products and business are constantly evolving, and we may modify the KA Media Policies from time to time, including during your then-current License Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to the KA Media Policies that, considered as a whole, would substantially diminish our obligations during your then-current License Term. Modifications to the KA Media Policies will take effect automatically as of the effective date specified for the updated policies.
20. General Provisions
20.1. Notices. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. You agree that any such electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Our notices to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Kathryn Aragon Media, 6917 Puetollano Dr., North Las Vegas, NV, USA 89084. Your notices to us will be deemed given upon our receipt.
20.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
20.3. Assignment. You may not assign or transfer this Agreement without our prior written consent. As an exception to the foregoing, you may assign this Agreement in its entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under this Agreement. Any attempt by you to transfer or assign this Agreement except as expressly authorized above will be null and void. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under this Agreement, in which case we will remain responsible for their compliance with this Agreement. Subject to the foregoing, this Agreement will inure to the parties’ permitted successors and assigns.
20.4. Entire Agreement. This Agreement is the entire agreement between you and KA Media relating to the Software and supersedes all prior or contemporaneous oral or written communications, proposals and representations between you and KA Media or its Resellers, including divisions, affiliates, and partners, with respect to the Software or any other subject matter covered by this Agreement. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
20.5. Conflicts. In event of any conflict between the main body of this Agreement and either the KA Media Policies or Product-Specific Terms, the KA Media Policies or Product-Specific Terms (as applicable) will control with respect to their subject matter.
20.6. Waivers; Modifications. No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 19 (Changes to this Agreement), any amendments or modifications to this Agreement must be executed in writing by the authorized representatives of KA Media and you.
20.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
20.8. Independent Contractors. The parties are independent contractors. This Agreement will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
21. Definitions.
Certain capitalized terms are defined in this Section 21, and others are defined contextually in this Agreement.
“Additional Services” means Account Manager services, Support and Maintenance, or other services related to the Software provided to you by KA Media, as identified in an Order.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“KA Media Policies” means KA Media’s Privacy Policy, Terms & Conditions, and (unless otherwise specified) any other policies or terms referenced in this Agreement.
“KA Media Technology” means the Software (including all No-Charge Software), KA Media Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
“Authorized Users” means the specific individuals whom you designate to use the applicable Software and for whom you have paid the required fees. Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents or other third parties who are acting for your or your Affiliates’ benefit or on your or your Affiliates’ behalf. Authorized Users also include any website domains that you have licensed to use the Software, subject to Section 2.3 (Secondary Users and Domains).
“Documentation” means any standard published documentation for the Software.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Software, Support and Maintenance or Additional Services.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“License Term” means your permitted license term for the Software, as set forth in an Order.
“New Releases” means any bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that KA Media makes available to you as part of Support and Maintenance.
“Order” refers to KA Media’s or an Affiliate’s applicable online order page(s) and receipt(s) or confirmation(s) of purchase describing the products and services you are ordering from us. As applicable, the Order will identify: (i) the Products, (ii) the number of End Users or Domains, Subscription Term, the user(s) or domain(s) associated with your use of Product, or other scope-of-use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include Additional Services and No-Charge Products.
“Product-Specific Terms” means additional terms that apply to certain Software and Additional Services.
“Scope of Use” means your authorized scope of use for the Software as specified in the applicable Order, which may include: (a) number and type of Authorized Users, (b) numbers of licenses, copies or instances, or (c) entity, division, business unit, website, field of use or other restrictions or billable units.
“Software” means KA Media’s commercially available software products, including software, widgets, and apps. Your Order will specify the Software that you may use.
“Support and Maintenance” means KA Media’s support and maintenance services for the Software. Your level of Support and Maintenance will be specified in your Order.
“Training” means KA Media-provided training and certification services.
