SUBSCRIPTION TERMS OF SERVICE
IMPORTANT: PLEASE READ THESE TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY BEFORE USING THE
SUBSCRIPTION SERVICES. BY USING THE SUBSCRIPTION SERVICES, YOU ARE ACCEPTING AND AGREEING TO BE
BOUND BY THESE TERMS OF SERVICE. THESE TERMS OF SERVICE WILL SUPERSEDE ANY AND ALL AGREEMENTS
OR TERMS OF SERVICE GOVERNING ANY USE OF THE SUBSCRIPTION SERVICES PREVIOUSLY PROVIDED BY
KOFAX (AND ITS PREDECESSORS IN INTEREST) TO YOU.
1. Subscription Services.
(a) Subscription Services. Subject to the terms and conditions of these Terms of Service, Kofax, Inc. and its subsidiaries and affiliates (“Kofax”) grants you the nontransferable right to access and use the software subscription services as described in one or more valid agreements and/or order documents (the “Agreement”) between you and Kofax identifying the specific subscription services and the limitations on use (such as volume limitations or a specific type of function, transaction or other use limitation) (the “Subscription Services”), such Agreement which sets forth the service fees and other terms and conditions applicable for the Subscription Services. The Subscription Services are subject to the storage you acquired as described in the Agreement, such storage which you may upgrade upon payment of additional Fees at Kofax’s then current pricing.
(b) Subscription Services Platform. Kofax will provide the Subscription Services through Kofax’s computer software and
datacenter facilities (the “Subscription Services Platform”), which Kofax will manage and maintain. Any web endpoints on the
Subscription Services Platform requiring a certificate will be set up with a Kofax provided DNS name and third party SSL certificate. You may not provide your own internal or external CA-generated certificates. The Subscription Services Platform may be operated by Kofax or by one or more third parties under agreements with Kofax.
(c) Subscription Services Support. Kofax will provide you support for the Subscription Services depending on the level of Subscription Services Support purchased, with engagement within two (2) hours, either during the Subscription Services Support’s regional business hours of the primary customer location, or 24 hours a day, 7 days a week, 365 days a year, and you consent to Kofax’s application of all upgrades, enhancements and new releases to the Subscription Services Platform. You will be solely responsible to notify Kofax immediately of any support issues via email at the Kofax’s address as provided in the Agreement, and, at your expense, to train your users on use of the Subscription Services, be familiar with and leverage the use of Lexmark Enterprise Software online support, designate a key contact for Subscription Service support communications, and provide Kofax timely return of requested troubleshooting data in order to perform root cause analysis for support issues being experienced with the Subscription Services.
(d) Subscription Services Availability Commitment. Kofax’s Subscription Services availability commitment is to provide you the ability to access the Subscription Services Platform 99.9% of the time, subject to outages of the Subscription Services Platform for maintenance. These commitments do not constitute a warranty or guarantee, and the Subscription Services are subject to the limitation of warranties as provided in these Terms of Service. Your sole and exclusive remedy in the event Kofax fails to meet this service commitment or fails to comply with any other terms of these Terms of Service will be termination of the Subscription Services and these Terms of Service, such termination effected by written notice to Kofax.
(e) Client Component Software. If the Subscription Services includes a software client component installed in your desktop
environment, you are hereby granted a non-exclusive and non-transferable license to use such software for the Subscription Services. Any portion of such software that constitutes third party software, including software provided under a public license, is licensed to Customer subject to the terms and conditions of the software license agreements set forth in the thirdpartylicenses.txt.file accompanying the client component software.
(f) Customer Responsibilities. You are responsible, at your expense, for providing the desktop and application environment necessary for the implementation and execution of the Subscription Services, providing maintenance, service, security and administration for such application environment, providing network connectivity between your local environment and the Subscription Services Platform, and paying all third-party access fees incurred by you to access and use the Subscription Services. You also will provide Kofax with timely access to your desktop and application environment and functional and/or information technology staff to implement and deliver of the Subscription Services.
(g) Your Data and Information. You are solely responsible for the accuracy and completeness of any and all data and
information located on the Subscription Services Platform, and Kofax makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy or validity of the data and information available from or on the Subscription Services Platform. Kofax will not be liable to you or to any third party for any liabilities, damages, losses, penalties, costs or expenses suffered by you or any third party arising from any inaccuracy, incompleteness or invalidity of any such data and information or, absent Kofax gross negligence or intentional act or omission, any modification, corruption, loss or breach of security with respect to any such data and information.
(h) Rights and Obligations Upon Termination. Upon the expiration or termination of the Subscription Services, Kofax will have no further obligation to provide the Subscription Services, and you will have no further rights to use or access the Subscription Services Platform. Upon your payment to Kofax of all amounts due by you to Kofax under the Agreement, and upon your payment to Kofax of data migration fees at Kofax’s then current prices for such data migration services, Kofax will deliver to you your objects/imagesincluding metadata then located upon the Subscription Services Platform. If you fail to pay all such amounts to Kofax within ten (10) days following the expiration or termination of the Subscription Services, Kofax may permanently delete such objects/images/metadata from the Subscription Services Platform with no liability or further obligation to you with respect to such objects/images/metadata.
(i) Subscription Services Data. Kofax may collect, store, track, compile and aggregate data and information related to your access and use of the Subscription Services, which will not include any content you place on the Subscription Services Platform or your other Customer Confidential Information and Personally Identifiable Information (as defined in Section 9 below) (the “Subscription Services Data”). Kofax will own and control the use of the Subscription Services Data and will not have any confidentiality obligations with respect to such Subscription Services Data.
2. Use of Subscription Services.
(a) Use of Subscription Services. You will not use the Subscription Services or Subscription Services Platform in any manner which (a) disrupts the normal use of the Subscription Services Platform by Kofax, other users of the Subscription Services Platform, (b) impacts the privacy, integrity or security of Kofax or such other users, (c) is legally actionable between private parties, or (d) violates any local, state, federal or international law or regulation. You will be solely responsible for all content and data placed upon the Subscription Services Platform by you or your authorized users of the Subscription Services and the Subscription Services Platform.
(b) Restrictions. You will use the Subscription Services only for your internal business purposes and your direct benefit. You
will not modify, enhance or create derivative works based upon the Subscription Services or supplemental materials associated with Subscription Services, any such modification, enhancement, copy or derivative work nor other improvement which will be Kofax’s exclusive property and governed under these Terms of Service.
(c) Security Measures. Kofax may require you to maintain secure passwords for use of the Subscription Services. You will
keep confidential and not disclose to any third parties any user identifications, passwords, account numbers or account profiles, and you will have sole responsibility for maintaining the confidentiality of and preventing the unauthorized use of any secure passwords, and for otherwise preventing any unauthorized access to the Subscription Services Platform from or through your facilities, telecommunications and internet services.
(e) U.S. Government License Rights. If you are a U.S. Government entity, then all Subscription Services and other services provided to you are provided under the commercial license rights and restrictions generally applicable under these Terms of Service. If a U.S. Government entity has a need for rights not conveyed under the terms of these Terms of Service, it must negotiate with Kofax to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written agreement with Kofax specifically conveying such rights.
3. Fees. The fees payable by you to Kofax for Subscription Services are as provided in the Agreement, and you will pay such fees as provided in the Agreement. You will pay all taxes or levies of whatever nature arising out of or in connection with the Subscription Services and these Terms of Service, excluding taxes based on Kofax’s net income.
4. Limited Warranty.
(a) Warranty. Kofax warrants that it has the legal right to provide the Subscription Services to you.
(b) DISCLAIMERS. KOFAX MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE SUBSCRIPTION SERVICES, EXPRESSED OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OF SERVICE, AND KOFAX EXPRESSLY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR SKILL AND CARE. ANY IMPLIED WARRANTIES THAT BY LAW CANNOT BE DISCLAIMED ARE LIMITED IN
DURATION TO THE GREATER OF (A) NINETY (90) DAYS FROM THE DATE OF THIS AGREEMENT, OR (B) THE SHORTEST PERIOD PERMITTED BY LAW.
5. Indemnification. You will hold harmless, indemnify and defend Kofax, its affiliates and their respective officers, directors, agents and employees (collectively, “Kofax Parties”) from and against any and all claims (including any and all liabilities, damages, losses, costs and expenses and reasonable attorneys’ fees arising therefrom) to the extent arising out of any action or proceeding brought by a third party against any one or more of the Kofax Parties (i) alleging injury, damage or loss resulting from your use of the Subscription Services, (ii) alleging that your objects/images including metadata located upon the Subscription Services Platform infringe a copyright or patent, or misappropriate a trade secret of a third party, or (iii) related to any act or omission by you which is a breach by you of any of your obligations under these Terms of Service.
6. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL KOFAX BE LIABLE TO YOU FOR ANY PUNITIVE DAMAGES OR LOST PROFITS OR OTHER ECONOMIC LOSS, LOST OR DEGRADED DATA, INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF BUSINESS, REVENUE, GOODWILL OR USE), HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, ARISING OUT OF THE USE OF (OR INABILITY TO USE) THE SUBSCRIPTION SERVICES, EVEN IF YOU HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING CAUSES OF ACTION ARISING OUT OF TERMINATION OF THE AGREEMENT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, PRODUCT LIABILITY AND ANY OTHER TORTS. THE MAXIMUM AGGREGATE AMOUNT FOR WHICH KOFAX MAY BE LIABLE UNDER THE AGREEMENT WILL BE LIMITED TO THE AMOUNTS ACTUALLY PAID OR PAYABLE BY YOU TO KOFAX FOR THE SUBSCRIPTION SERVICES SUBJECT OF THE CLAIM FOR WHICH SUCH LIABILITY IS ASSERTED DURING THE EIGHTEEN (18) MONTHS PRECEDING THE CLAIM.
7. Ownership of Intellectual Property. Kofax will retain all title to and ownership of all proprietary documentation, software, techniques, tools and processes used by Kofax in providing the Subscription Services, or in utilizing software utilized by Kofax in
providing the Subscription Services or any tools associated with such software, including, without limitation, all written materials, copyright and patent rights, and other intellectual property rights.
8. Term and Termination.
(a) Term. The term of these Terms of Service and the Subscription Services will commence on the date of the Agreement and will continue until the termination or expiration of the term as provided in the Agreement or these Terms of Service.
(b) Termination for Breach. Either party may terminate these Terms of Service and the Subscription Services effective ten
(10) days after written notice to the other in the event that the other breaches any material provision of these Terms of Service and has not cured such breach within such ten (10) day period, except for your breach of any payment terms, which will have a five (5) day cure period, and except for your violation of the use restrictions provided in these Terms of Service, which will permit Kofax to immediately terminate these Terms of Service and the Subscription Services.
(c) Rights and Obligations upon Termination or Expiration. Upon termination or expiration of these Terms of Service and the Subscription Services, all Subscription Services will immediately cease; provided, however, that such termination or expiration will not excuse your obligation to pay in full fees or other amounts due by you to Kofax, nor entitle you to a refund of fees paid by you to Kofax.
(d) Continuing Obligations. The terms and conditions of these Terms of Service that by their nature and context are intended to survive any termination or expiration of the term of these Terms of Service and the Subscription Services, including, without limitation, Sections 3 (Fees), 5 (Indemnification), 6 (Limitation of Liability), 7 (Ownership of Intellectual Property), 8 (Term and Termination), 9 (Confidentiality and Nondisclosure) and 10 (Miscellaneous), will survive such termination or expiration for any reason and will be fully enforceable thereafter.
9. Confidentiality and Nondisclosure.
(a) Confidentiality and Nondisclosure. Kofax will maintain the confidentiality of, and agrees to use the same care to prevent disclosure of, your confidential information and Personally Identifiable Information as it employs to avoid disclosure, publication or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care. Kofax, however, may disclose Confidential Information and Personally Identifiable Information to its employees, directors, officers, affiliates, agents, subcontractors, attorneys, accountants or professional advisors, who have a need to have access to the Confidential Information and Personally Identifiable Information in providing the Subscription Services.
(b) Exclusion. Confidential information will not include information that (a) is or becomes publicly available other than
through Kofax, (b) is in Kofax’s possession at the time of disclosure, (c) is acquired by Kofax from a third party, who provides the information without breaching any express or implied obligations or duties to you, (d) is disclosed by Kofax with your prior written consent, (e) is independently developed by Kofax without reference to confidential information, or (f) is disclosed in response to a valid order, or request of a court or other governmental body; provided, however, that unless prohibited by law or regulation, Kofax will first give you notice of any such order, inquiry or request so that you may seek an appropriate protective order.
(a) Notices. Except as otherwise provided above, notices pursuant to these Terms of Service must be in writing and will be
deemed effectively delivered to you when delivered by email at the address specified in the Agreement, and to Kofax by email to Kofax’s address specified in the Agreement. All notices so given will be deemed given upon the earlier of receipt or three (3) days after dispatch.
(b) No Assignment. You will not voluntarily or involuntarily in any form or manner, assign or, transfer, including any
assignment or transfer by operation of law, the Subscription Services or any rights under these Terms of Service.
(c) Governing Law. These Terms of Service will be construed and governed in accordance with the internal laws of the State of Delaware, without regard to any rules of conflicts or choice of law provisions that would require the application of the laws of any other jurisdiction. The foregoing notwithstanding, however, if you acquired the Subscription Services in a country which is a member of the European Union (including the UK), the laws of that country will govern the interpretation of these Terms of Service and any claims arising hereunder, regardless of choice of laws principles of any other jurisdiction. In each case, these Terms of Service will be construed and enforced without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act.
(e) Attorneys’ Fees. In any action to interpret or enforce these Terms of Service, the prevailing party will be awarded all court costs and reasonable attorneys’ fees and costs and expenses of investigation incurred.
(f) Entire Agreement. These Terms of Service and the Agreement constitute the entire understanding and agreement between the parties with respect to the subject matter of these Terms of Service, and supersede all previous agreements and communications between the parties concerning such subject matter. No modifications may be made to these Terms of Service except in writing, signed by both parties.
(g) Severability. The provisions of these Terms of Service are severable, and if any one or more such provisions is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions or portions thereof will not be affected or impaired thereby and will nevertheless be binding between the parties. In the event any provision of these Terms of Service is found to be invalid, illegal, or unenforceable, the parties will endeavor to modify that provision in a manner that gives effect to the intent of the parties in entering into these Terms of Service.
(h) Export. Any technical data provided by Kofax (collectively, the “Controlled Items”) are subject to United States export
control jurisdiction, and may not be shipped, transferred, re-exported into any country, or used for any purpose prohibited by any applicable international and national legal instruments that apply to the Controlled Items, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the United States and other governments. You agree that you will not export or re-export the Controlled Items without first having obtained applicable United States or foreign government export licenses or permissions.
(i) Force Majeure. Neither party will be liable or deemed to be in default for any delay or failure in performance under these
Terms of Service (except for payment obligations) resulting, directly or indirectly, from acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes or any causes beyond its reasonable control; provided that the party failing to perform in any such event will promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.
(j) Compliance with Laws. The parties agree to comply with any and all laws and governmental requirements that apply to
their respective performance under this Agreement. You agree that you are solely responsible for determining and complying with any and all laws and governmental requirements applicable or incident to your use of the Kofax Services, including, without limitation, data protection laws affecting your use or the retention of data, including any obligation to obtain consents related to any disclosure of personal data.