Conditions of use

KOFAX TERMS OF SERVICE

IMPORTANT:  BY USING THE FREEMIUM OR SUBSCRIPTION SERVICES (“SUBSCRIPTION SERVICES”), YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THESE KOFAX TERMS OF SERVICE (“TERMS OF SERVICE”), AND THESE TERMS OF SERVICE WILL BE A LEGAL AND BINDING CONTRACT BETWEEN YOU AND KOFAX (“SUPPLIER”).  IF YOU ARE ACCEPTING AND AGREEING TO BE BOUND BY THESE TERMS OF SERVICE IN CONJUNCTION WITH YOUR EMPLOYMENT ON BEHALF OF YOUR EMPLOYER, A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS OF SERVICE.  IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR EMPLOYER, A COMPANY OR OTHER LEGAL ENTITY THAT WILL USE THE SUBSCRIPTION SERVICES, DO NOT USE THE SUBSCRIPTION SERVICES OR ACCEPT AND AGREE TO 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 SUPPLIER (AND ITS PREDECESSORS IN INTEREST) TO YOU. 

1.  Subscription Services.

(a)  Subscription Services.  Subject to the terms and conditions of these Terms of Service and the order which you submitted to Supplier for the Subscription Services (the “Sales Order”), such Sales Order which sets forth the service fees and other terms and conditions applicable for the Subscription Services, Supplier will provide the Subscription Services through Supplier’s software architecture (the “Subscription Services Platform”), which Supplier will manage and maintain.  The Subscription Services Platform may be operated by Supplier or by one or more third parties under agreements with Supplier.

(b)  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, maintaining bandwidth of sufficient capacity for the operation of the Subscription Services, and paying all third-party access fees incurred by you to access and use the Subscription Services. 

(c)  Your Data and Information.  You are solely responsible for the accuracy and completeness of any and all data and information provided to, and/or processed by the Subscription Services, and Supplier 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 the Subscription Services Platform.  Supplier 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 Supplier gross negligence or intentional act or omission, any modification, corruption, loss or breach of security with respect to any such data and information. 

(d)  Rights and Obligations Upon Termination.  Upon the expiration or termination of the Subscription Services, Supplier will have no further obligation to provide the Subscription Services, you will have no further rights to use or access the Subscription Services Platform, and Supplier will have no liability or further obligation to you with respect to any of your objects/images/metadata. 

(e)  Subscription Services Data.  Supplier 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  processed 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”).  Supplier 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 in any manner which (a) disrupts the normal use of the Subscription Services by Supplier, other customers of Supplier or any other user of the Subscription Services, (b) impacts the privacy, integrity or security of Supplier or such other customers or users, (c) is legally actionable between private parties, or (d) violates any local, state, federal or international law or regulation.  You further will not allow unauthorized access to or use of the Subscription Services.  Any such use by you of the Subscription Services is considered to be an abuse of the Subscription Services Platform and cause for immediate termination of the Subscription Services without providing you notice or opportunity to cure such violation.  You will be solely responsible for all content and data processed by the Subscription Services Platform by you or your authorized users of the Subscription Services.

(b)  Restrictions.  You will be the end-user of the Subscription Services, and will use the Subscription Services only for your internal business purposes and your direct benefit, and you will not use the Subscription Services for the internal purposes or direct benefit of any third party nor for any timesharing, rental, Internet or application service provider, or service bureau basis.  You will not copy, frame or mirror any part or content of the Software Services, or reverse engineer the Software Services. 

(c) Security Measures.  You will not use any process, program or tool, in connection with the Subscription Services, the Subscription Services Platform or otherwise, for guessing the passwords of Supplier, other customers, or any other user of the Subscription Services Platform.

(d)  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 Supplier to determine if there are acceptable terms for transferring such rights, and it must enter into a mutually acceptable written agreement with Supplier specifically conveying such rights.

3.  Fees and Payment.  The fees payable by you to Supplier for Subscription Services are in the amount provided to you upon submission of a Sales Order. Such fees are invoiced on a monthly basis and are payable within thirty (30) calendar days after invoice date, and interest will accrue on invoiced amounts not paid within such thirty (30) calendar days after invoice date at the lower of 1.5 percent (1.5%) per month for each month (or fraction thereof) that payment is not received by Supplier, or the maximum percentage allowed by applicable law. 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 Supplier’s net income. All fees are nonrefundable and non-cancellable. If Supplier suspends the Subscription Services because of Customer’s failure to timely pay an invoice, Supplier, as a condition to reinstatement of such Subscription Services, may require Customer to pay a service reconnection fee in addition to payment in full of all past due amounts. Supplier may increase the fees for the Subscription Services from time to time by posting notice of the amount and effective date of such increase to Customer on Supplier’s website for the Subscription Services.

4.  Warranty.

(a)  Subscription Services Warranty.  Supplier warrants that it has the legal right to provide the Subscription Services to you, and that the Subscription Services will be performed and provided in a professional manner by personnel familiar with the Subscription Services. 

(b)  disclaimers.  Supplier makes no representations or warranties concerning the SUBSCRIPTION Services, expressed or implied, except as expressly provided IN THESE TERMS OF SERVICE, and Supplier 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.

5.  Indemnification.  You will hold harmless, indemnify and defend Supplier, its affiliates and their respective officers, directors, agents and employees (collectively, “Supplier 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 Supplier Parties (i) alleging injury, damage or loss resulting from your use of the Subscription Services, (ii) alleging that your objects/images including metadata submitted to, processed by or 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. To the maximum extent permitted by law, in no event will SUPPLIER be liable to YOU for loss of profits or other economic loss, special, consequential, exemplary, or incidental damages (including without limitation any loss of business, profits, revenue, goodwill, use, or data), even if YOU HAVE been apprised of the likelihood of such damages occurring.  These limitations apply to all causes of action in the aggregate, including without limitation causes of action arising out of breach of contract, breach of warranty, negligence, strict liability, misrepresentation, product liability and any other torts.  Unless prohibited by law, the maximum aggregate amount for which SUPPLIER may be liable under THESE TERMS OF SERVICE will be limited to THE GREATER OF FIVE HUNDRED DOLLARS OR the amounts actually paid by YOU to SUPPLIER for the affected SUBSCRIPTION SERVICES under THESE TERMS OF SERVICE during the eighteen (18) months preceding a Claim.  This section will not apply, however, to SUPPLIER’s infliction of bodily injury (including death). 

7. Ownership of Intellectual Property.   Each party and their respective licensors will retain all of their right, title, and ownership in and to their intellectual property and related materials.  As between you and Supplier, Supplier will retain all title to and ownership of all proprietary documentation, software, techniques, tools and processes used by Supplier in providing the Subscription Services, including, without limitation, all written materials, copyright and patent rights, and other intellectual property rights.  Except, and to the extent expressly provided in these Terms of Service, no other right is hereby transferred or granted to you, including any license by implication, estoppel or otherwise, under any patent, trade secret, trademark or copyright.

8.  Term and Termination.

(a)  Term.  The term of these Terms of Service and the Subscription Services will commence on the date you submit the Sales Order, and will continue until terminated either by you or Supplier; provided, however, that except as provided in Section 8(b) below, a termination by Supplier will not be effective until you have utilized any unused transactions remaining on your account.  

(b)  Termination for Breach.  Supplier may terminate these Terms of Service and the Subscription Services immediately in the event that you breach any material provision of these Terms of Service.  In such event, you will not be entitled to a return of fees paid in any month in which you terminate if there are unused transactions remaining on your account. 

(c)  Termination for Non-payment.   Supplier may terminate these Terms of Service and the Subscription Services upon ten (10) calendar days prior written notice to Customer if Customer fails to timely pay any Subscription Services fees, and thereafter fails to make such payment within such ten (10) day period; provided, that Supplier may immediately terminate the Subscription Services and will not be required to provide Customer any notice or opportunity to cure upon the second occurrence of Customer’s failure to timely pay any such Subscription Services fees during any twelve (12) month period.

(d)  Rights and Obligations upon Termination or Expiration.  Upon termination or expiration of these Terms of Service and the Subscription Services: (i), all Subscription Services will immediately cease, (ii) you will have no further right to use the Subscription Services, and (iii) you will comply immediately with each of your obligations under this Agreement arising upon such expiration or termination. 

(e)  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 and Payment), 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.  Supplier will maintain the confidentiality of, and agrees to use the same care to prevent disclosure of, your Confidential Information and Personally Identifiable Information as Supplier 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.  Supplier, 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)  Confidential Information and Personally Identifiable Information Defined.  “Confidential Information” includes any information concerning you and your affiliates disclosed by you to Supplier: (i) that has been marked as “confidential” or “proprietary” or with a similar legend; (ii) whose confidential nature has been made known by you, orally or in writing, to Supplier concurrently with the disclosure of such information; or (iii) that, due to its character and nature, a reasonable person under like circumstances would treat as confidential.  “Personally Identifiable Information” includes all information disclosed by you to Supplier that identifies or may be used to identify any individuals who are your customers, end-users, employees or contract personnel, including, but not limited to, name, address, telephone number, e-mail address, date of birth, social security number, age, gender, race, nationality, account number and transaction history.

(c)  Exceptions.  Confidential Information, however, will not include information that: (i) is or becomes publicly available other than through Supplier; (ii) is in Supplier’s possession at the time of disclosure; (iii) is acquired by Supplier from a third party, who provides the information without breaching any express or implied obligations or duties to you; (iv) is disclosed by Supplier with your prior written consent; (v) is independently developed by Supplier without reference to Confidential Information; or (vi) is disclosed in response to a valid order, or request of a court or other governmental body.

10. Miscellaneous.

(a)  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.

(b)  Governing Law.  These Terms of Service will be construed and governed in accordance with the internal laws of the State of Kansas, without regard to any rules of conflicts or choice of law provisions that would require the application of the laws 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. 

(c)  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’ feesand costs and expenses of investigation incurred.

(d)  Entire Agreement.  These Terms of Service and the Sales Order, which is incorporated into these Terms of Service by this reference, constitutes the entire understanding and agreement between the parties with respect to the subject matter of these Terms of Service, and supersedes 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.

(e)  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.

(f)  Export.  Any technical data provided by Supplier (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.

(g)  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.

(h)  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 Supplier 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.

(i)  Headings.  The descriptive headings in these Terms of Service are inserted for convenience only and do not constitute part of the Terms of Service.