Last Updated Date: 10/7/2020
1. YOUR LICENSE TO USE OUR PRODUCTS.
Subject to the terms and conditions of this Agreement and any agreement entered into by your institution relating to the Products, eKadence grants you a limited, non-exclusive, non-transferable, license to access and use the Products. You shall not (a) copy the Product or any part, feature, function or user interface thereof (b) use the Product to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights (c) attempt to gain unauthorized access to the Product or its related systems or networks; and (d) reverse engineer the Product (to the extent such restriction is permitted by law).
You agree, further, not to use or attempt to use any engine, software, tool, agent or other device or other mechanisms (including without limitation browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Products or Content.
3. EKADENCE'S RIGHTS.
All right, title, and interest in and to the Products and all underlying ideas, concepts, procedures, processes, principles, know-how, methods of operation, images, source code, and specifications related thereto, together with any updates, enhancements, modifications, improvements or derivatives works thereto, in each case including all copyrights, trade names, trademarks and other intellectual property rights therein (collectively, the “eKadence IP”), is, and shall remain the sole and exclusive property of eKadence. Certain eKadence IP is protected by United States copyright laws (and other laws relating to intellectual property). The Products are licensed, not sold, to you hereunder and, except for the express limited license rights granted to you in accordance with the terms of this Agreement, no right, title or interest in or to the eKadence IP is granted or otherwise transferred by eKadence in connection with this Agreement. eKadence shall have, and you hereby grant to eKadence, a royalty-free, perpetual, worldwide, non-exclusive, irrevocable right to use or incorporate into the Products and/or any specifications, without restriction or obligation, any suggestions, enhancements, recommendations or other feedback provided by you with respect to the Products.
eKadence may suspend or terminate your account or cease providing you with access to our Products, without notice, for any conduct that eKadence, in its sole discretion, believes is in violation of any applicable law or the terms of this Agreement. The sections titled “Privacy,” “Your Content,” “eKadence’s Rights,” “Termination,” “Indemnification”, “Limitation of Liability, “Disclaimer of Warranties,” “Indemnification,” “Miscellaneous” shall survive any termination of this Agreement.
You agree to indemnify, defend and hold harmless eKadence and eKadence’s officers, directors, employees, agents, and representatives, from and against any and all claims, damages, expenses, judgments, fines, and amounts paid in a settlement in connection with any proceeding arising from your breach of this Agreement or your use of the Products (except for any gross negligence on the part of eKadence).
6. DISCLAIMER OF WARRANTIES & LIMITATION OF LIABILITY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF OUR PRODUCTS IS AT YOUR SOLE RISK, AND OUR PRODUCTS ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS OR CAPACITY, OR THAT THE OPERATION OF THE SOFTWARE INCLUDED WITHIN THE PRODUCTS WILL BE ERROR-FREE. ALL OTHER WARRANTIES RELATING TO THE PRODUCTS OR THIS AGREEMENT ARE HEREBY EXPRESSLY DISCLAIMED BY EKADENCE. EKADENCE MAKES NO WARRANTY OR REPRESENTATION THAT (A) THE PRODUCTS WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR (C) ANY ERRORS IN THE PRODUCTS WILL BE CORRECTED.
IN CONNECTION WITH USING OUR PRODUCTS, YOU MAY PURCHASE OTHER PRODUCTS AND/OR SERVICES FROM, AND/OR PARTICIPATE IN PROMOTIONS OF, THIRD PARTIES. TRANSACTIONS RELATING TO ANY SUCH THIRD PARTY PRODUCTS, SERVICES AND/OR PROMOTIONS, AND ANY TERMS ASSOCIATED THEREWITH, ARE SOLELY BETWEEN YOU AND THE RELEVANT THIRD PARTIES. EKADENCE DOES NOT SUPPORT, ENDORSE OR MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING, ANY SUCH THIRD PARTY PRODUCTS, SERVICES AND/OR PROMOTIONS, AND IN NO EVENT WILL EKADENCE HAVE ANY LIABILITY WHATSOEVER IN CONNECTION THEREWITH.
IN NO EVENT WILL EKADENCE, ITS DEVELOPERS, OR ITS SUPPLIERS BE LIABLE FOR ANY LOST PROFITS, LOST OPPORTUNITY, LOST SAVINGS, LOSS OF GOODWILL, LOST BUSINESS, LOSS OF ANTICIPATED BENEFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF OR DAMAGE TO DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR AS A RESULT OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE PRODUCTS OR THE PROVISION OF SERVICES, EVEN IF EKADENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EKADENCE’S, ITS DEVELOPERS’ OR SUPPLIERS’ ENTIRE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR AS A RESULT OF THIS AGREEMENT EXCEED THE GREATER OF TWENTY FIVE DOLLARS ($25) OR THE AMOUNT YOU ACTUALLY PAID EKADENCE IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
CERTAIN STATE LAWS, INCLUDING NEW JERSEY, DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS DO NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
7. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE.
We respect the intellectual property rights of others and require that the people who use the Products do the same. We may terminate the use privileges of users who are repeat infringers of intellectual property rights. Accordingly, you may not store any material or content on, or disseminate any material or content over, the Products in any manner that constitutes an infringement of third party intellectual property rights, including rights granted by U.S. copyright law. Owners of copyrighted works who believe that their rights under U.S. copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please forward the following information (or any statement in conformance with the DMCA) to our Copyright Agent whose contact information is provided below:
Your name, address, telephone number, and email address;
A description of the copyrighted work that you claim has been infringed;
A description of the allegedly infringing material and information reasonably sufficient to permit us to locate the material;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright that is allegedly infringed; and
A statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Force Majeure. eKadence shall not be liable for any delay or failure to perform any obligation hereunder due to causes beyond its control, including without limitation, war, riot, insurrection, civil commotion, terrorist activity, fire, industrial disputes of whatever nature, acts of nature, computer crimes, epidemics, acts or omissions of third party vendors or suppliers, equipment failures, public enemies of government, failure of telecommunications, system malfunctions, fire, or other casualty.
Waiver and Severability. Waiver by eKadence of any default or breach by you of any provision contained in this Agreement does not constitute a waiver of any subsequent default or breach of the same or any other provision of this Agreement. If any part of this Agreement shall be held invalid, illegal, in conflict with any law, or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement will nevertheless remain in full force and effect. No Third-Party Beneficiaries. The parties do not intend to confer any right or remedy on any third party.
No Third-Party Beneficiaries. The parties do not intend to confer any right or remedy on any third party.
Assignment. You may not assign this Agreement to any third party without the prior written consent of the eKadence. Any such purported assignment shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors, and permitted assigns, if any. eKadence may assign its rights and obligations under this Agreement to a third party without your consent.
Controlling Law and Venue. This Agreement shall be construed and controlled by the laws of the Utah, U.S.A., fourth (4th) District Court without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed and shall not apply to this Agreement. You waive any objections to venue, personal jurisdiction, or forum non conveniens.