- License. Subject to Your acceptance of these Terms, Kofax, Inc. (“Kofax”) grants You a limited, non-exclusive, non-transferable, and revocable license to access and to share and link to Your assets and solution technology offerings (the “Software”) and to post related content concerning the Software (collectively, “Content”) on Kofax’s digital information exchange located at https://smarthub.kofax.com or such successor site thereto (the “Kofax SmartHub”). Kofax reserves all rights not expressly granted in these Terms and grants You no other licenses or other rights with respect to the Kofax SmartHub or any other content on the Kofax SmartHub. By linking Content on the Kofax SmartHub You hereby grant Kofax (i) a transferable, royalty-free, sub-licensable, non-exclusive, worldwide, license, valid for the entire duration of such Content being posted on the Kofax Smarthub, to host, re-distribute (as applicable), assess, test, publicly perform, and display, the Content in connection with the Kofax SmartHub, and (ii) a limited, revocable, worldwide, non-exclusive, non-transferable license to use Your trademarks, service marks and logos in Kofax’s marketing materials, solely for the purpose of promoting the Kofax SmartHub and publicizing Your participation in it. Any suggestions, ideas, comments, and other feedback regarding the Kofax SmartHub or Kofax products provided by You to Kofax may be used without any restriction or compensation to You.
The placement and positioning of any Content on the Kofax SmartHub are solely at the discretion of Kofax, and Kofax reserves the right to categorize or classify the Content or portions thereof in any way, at any time and without notice. This right shall not be deemed waived by the publication of any Content Asset on the Kofax SmartHub.
- Ownership of Content. Except for the licenses granted above and as otherwise provided in these Terms, You will remain the owner of the Content which you link on the Kofax SmartHub, and You will be solely responsible for enforcing Your license which may accompany any Content which you link on the Kofax SmartHub. You acknowledge that it is not Kofax’s responsibility to enforce Your license, and Kofax does not guarantee that Your license will be observed by other contributors or users.
- Use of the Kofax SmartHub. By using the Kofax SmartHub You acknowledge and agree to the Terms, represent and warrant to Kofax that You have and will comply with these Terms and all applicable laws and regulations, and that the only remedy for Your dissatisfaction with the Kofax SmartHub is to stop using it. You are solely responsible for all Software which You link on the Kofax SmartHub and all Content you place on the Kofax SmartHub, and for any harm resulting from it, and Kofax is not responsible for any public display or misuse of Your Software or Content or for any harm resulting from Your Software or Content.
By using the Kofax SmartHub, You may access or use software or content provided by Kofax, other contributors, users or third parties, including links to websites and services maintained by third parties. Kofax does not guarantee that any software linked at the Kofax SmartHub or elsewhere, or content posted on the Kofax SmartHub will be free of (a) material You may find objectionable or otherwise inappropriate or (b) malware or other contaminants that may harm Your computer, mobile device, or any files therein. Kofax disclaims any responsibility or liability related to Your use of such software or content.
You will not include in any Content linked or posted on the Kofax SmartHub (a) any misleading and/or deceptive statements about Your Software’s functionality, performance, origin or data use, (b) any statement or implication that Your Content is in any way provided, sponsored, developed, endorsed, reviewed or otherwise approved by Kofax, or (c) any asset or materials that contains malware, adware, or any kind of spyware designed to harm or other malicious code or any content or file that may have the effect of compromising any security or access control feature. You further will not use the Kofax SmartHub in any manner which (i) disrupts the use of the Kofax SmartHub by Kofax or any other contributor or user of the Kofax SmartHub, (ii) impacts the privacy, integrity or security of Kofax or any other contributor or user of the Kofax SmartHub, (iii) is legally actionable between private parties, (iv) violates any local, state, federal or international law or regulation, or (v) promotes third party software and services that are competitive to Kofax product offerings. You further will not use the Kofax SmartHub in any manner to (vi) defame, stalk, harass or threaten others, (vii) violate any intellectual property, privacy, or other rights or otherwise infringe or misappropriate another person’s intellectual property or other rights, (viii) attempt to access any other contributor’s or a user’s account, (ix) interfere or harm or attempt to interfere with or harm any other contributor or user, including, without limitation, by sending a virus, overloading, spamming, or use the Kofax SmartHub to distribute malware, or (x) send or facilitate disruptive commercial messages or advertisements to any person.
Your use of the Kofax SmartHub in violation of any of the foregoing restrictions will be grounds for Kofax immediately terminating Your license to and use of the Kofax SmartHub without providing You notice or opportunity to cure such violation. Kofax reserves the right to reject any link to Your Software or modify Content on the Kofax SmartHub at its own discretion and for any reason, and further in its own discretion and without notice may (a) remove any link to Your Software or modify Content that violates these Terms, or otherwise (b) suspend, disable, or terminate Your access to and use of all or part of the Kofax SmartHub.
- Access and Security. If You create an account to use the Kofax SmartHub, You will provide Kofax with accurate and complete information. You are responsible for securely storing any credentials to access and use the Kofax SmartHub and will not (a) share Your username and password, let anyone access Your account, or do anything that might put Your account at risk, or (b) degrade, break or circumvent authentication or security measures or otherwise test the vulnerability of Kofax’s systems, networks or the Kofax SmartHub. You must notify Kofax immediately of any unauthorized use of Your account and any other breach of security by emailing us at [Smarthub@kofax.com]. Kofax will not be liable for any loss or damage due to Your failure to comply with this security obligation, and Kofax does not guarantee that unauthorized third parties will not be able to circumvent Kofax’s or its suppliers’ security measures.
- System Maintenance and Outages. Kofax or its suppliers may periodically schedule system downtime for the Kofax SmartHub for maintenance and other purposes. Additionally, unplanned system outages may occur. You agree that Kofax and its suppliers have no responsibility for (a) the unavailability of the Kofax SmartHub, (b) any loss of materials, data, transactions or any other information or materials caused by such system outages, (c) the resultant delay, missed delivery, or non-delivery of data, transactions or any other information or materials caused by such system outages, or (d) any outages caused by any third parties, including without limitation, any companies or servers hosting the Kofax SmartHub, any internet service providers, any third party, or any internet facilities and networks.
- Representations and Warranties. You represent and warrant that You have title to and/or the authority to license and distribute any and all Software which You link on the Kofax SmartHub and title to any Content you post on the Kofax SmartHub, and that any Software which You link on the Kofax SmartHub does not contain any computer worms, viruses or other malicious code.
The Kofax SmartHub and Your access to and use thereof are provided “AS-IS”. Neither Kofax, its affiliates, licensors or suppliers, nor their officers, directors, employees, shareholders, agents or representatives (“Kofax Parties”) make any express or implied representations or warranties to You or any other person or entity with respect to the Kofax SmartHub or any software or content linked or posted thereon, whether oral or written, express, implied or statutory. Kofax assumes no responsibility for any software or content linked or posted to the Kofax SmartHub and does not warrant Your access to and use of the Kofax SmartHub or any software or content linked or posted thereon will be error free or uninterrupted, that errors or defects in the Kofax SmartHub or any software or content linked or posted thereon will be corrected, or that the Kofax SmartHub functionality will meet Your requirements. Without limiting the foregoing, any implied warranty or condition of merchantability or fitness for a purpose, and those arising in the course of dealing or usage of trade are expressly excluded and disclaimed to the maximum extent permitted by applicable law. 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 your acceptance of these Terms, or (b) the shortest period permitted by law.
- Limited Liability. In no event will the Kofax Parties be liable to You or any other person or entity for any punitive damages or lost profits or other economic loss, lost or degraded data, interruption or loss of business, loss of goodwill, indirect, special, incidental, exemplary or consequential damages, however caused, in any way arising or resulting from Your access to or use of the Kofax SmartHub or inability to access or use the Kofax SmartHub or from the performance or non-performance of the Kofax SmartHub, including the failure of essential purpose, regardless if Kofax has been notified by You of the possibility or likelihood of such damages occurring, and whether such liability is based on contract, tort, negligence, strict liability, products liability or otherwise. These limitations apply to all causes of action in the aggregate, including causes of action arising out of the termination of Your license to and use of the Kofax SmartHub, breach of contract, breach of warranty, negligence, strict liability, misrepresentation, product liability and any other torts. To the extent permissible under applicable law, the Kofax Parties are not responsible for any loss or damage arising from Your failure to comply with these Terms or due to use of the Kofax SmartHub, either with or without Your knowledge, including due to someone else using Your access to the Kofax SmartHub.
- Indemnification. You will indemnify, defend and hold harmless the Kofax Parties against any loss, damages, fines and expenses (including attorneys’ fees and costs) arising out of or relating to any claims, action or proceeding based on (a) Your use or attempted access to or use of the Kofax SmartHub in violation of these Terms; (b) Your violation of any law or rights of any third party; or (c) your Software or Content, including without limitation any claim by any user of such Software or Content and/or any claim of infringement or misappropriation of intellectual property or other proprietary rights.
- Termination. Kofax may, without prior notice to You, immediately terminate Your license to and use of the Kofax SmartHub if (a) Kofax has reasonable suspicion of Your breach or attempted breach of these Terms, (b) required to do so by law, (c) Kofax elects to discontinue the Kofax SmartHub, in whole or in part (including ceasing access for specific users in Kofax’s sole discretion), or (d) You discontinue posting links to Your Software and Content to the Kofax SmartHub. Upon such termination Your Content and links to Content may be removed from the Kofax SmartHub, although Kofax may retain and use Your information as necessary to comply with its legal obligations, resolve disputes, and enforce our agreements. Termination of Your license to and use of the Kofax SmartHub will not excuse You from fulfilling your obligations which by their terms or nature survive termination, including, without limitation, Your indemnification obligations, or terminate the limitation of liability provided in these Terms.
- No Assignment. You may not assign or otherwise transfer in whole or in part Your license and access to and use of the Kofax SmartHub without Kofax’s written consent, including any assignment or transfer incident to the acquisition of Your equity interests or merger or consolidation with another entity or by operation of law, and any such attempt will be void. Kofax may transfer its rights under these Terms to a third party without notice to you. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties and their respective successors and assigns.
- Export Control. Your license and access to and use of the Kofax SmartHub are subject to U.S. and international laws, restrictions, and regulations that may govern the import, export, and use of the Your Software and Content. You agree to comply with all such laws, restrictions and regulations.
- Governing Law. These Terms 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.
- Confidentiality and Non-Disclosure. Each party will maintain the confidentiality of and agrees to use the same care to prevent disclosure of, the confidential information and Personally Identifiable Information of the other party 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. The receiving party further agrees to use the confidential information and Personally Identifiable Information of the other party only in connection with and in furtherance of the business transactions contemplated by these Terms. The receiving party 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 carrying out the business transactions contemplated by this Agreement; provided, the receiving party will inform such persons of the confidential nature of the confidential information and Personally Identifiable Information and the applicability of this Agreement thereto, and will obligate and direct such persons to maintain the confidentiality of the confidential information and Personally Identifiable Information.
- Continued Rights to Independent Development. The parties agree that these Terms shall not be construed to limit either parties’ rights to independently develop or acquire products without use of the other party’s confidential information.
- Notices. All notices or other communications to Kofax under these Terms will be in writing and will be deemed to have been duly given upon delivery if delivered personally, or on the second day following the date such notice is mailed if mailed via registered mail, postage prepaid, to ATTN: Legal Department, Kofax at 15211 Laguna Canyon Road, Irvine, CA 92618, United States.