460 lines
27 KiB
Plaintext
460 lines
27 KiB
Plaintext
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KASTEN END USER LICENSE AGREEMENT
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This End User License Agreement is a binding agreement between Kasten, Inc., a
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Delaware Corporation ("Kasten"), and you ("Licensee"), and establishes the terms
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under which Licensee may use the Software and Documentation (as defined below),
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including without limitation terms and conditions relating to license grant,
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intellectual property rights, disclaimers /exclusions / limitations of warranty,
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indemnity and liability, governing law and limitation periods. All components
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collectively are referred to herein as the "Agreement."
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LICENSEE ACKNOWLEDGES IT HAS HAD THE OPPORTUNITY TO REVIEW THE AGREEMENT, PRIOR
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TO ACCEPTANCE OF THIS AGREEMENT. LICENSEE'S ACCEPTANCE OF THIS AGREEMENT IS
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EVIDENCED BY LICENSEE'S DOWNLOADING, COPYING, INSTALLING OR USING THE KASTEN
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SOFTWARE. IF YOU ARE ACTING ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE
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AUTHORIZED TO BIND THE COMPANY. IF YOU DO NOT AGREE TO ALL TERMS OF THIS
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AGREEMENT, DO NOT DOWNLOAD, COPY, INSTALL, OR USE THE SOFTWARE, AND PERMANENTLY
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DELETE THE SOFTWARE.
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1. DEFINITIONS
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1.1 "Authorized Persons" means trained technical employees and contractors of
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Licensee who are subject to a written agreement with Licensee that includes use
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and confidentiality restrictions that are at least as protective as those set
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forth in this Agreement.
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1.2 "Authorized Reseller" means a distributor or reseller, including cloud
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computing platform providers, authorized by Kasten to resell licenses to the
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Software through the channel through or in the territory in which Licensee is
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purchasing.
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1.3 "Confidential Information" means all non-public information disclosed in
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written, oral or visual form by either party to the other. Confidential
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Information may include, but is not limited to, services, pricing information,
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computer programs, source code, names and expertise of employees and
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consultants, know-how, and other technical, business, financial and product
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development information. "Confidential Information" does not include any
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information that the receiving party can demonstrate by its written records (1)
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was rightfully known to it without obligation of confidentiality prior to its
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disclosure hereunder by the disclosing party; (2) is or becomes publicly known
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through no wrongful act of the receiving party; (3) has been rightfully received
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without obligation of confidentiality from a third party authorized to make such
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a disclosure; or (4) is independently developed by the receiving party without
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reference to confidential information disclosed hereunder.
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1.4 "Documentation" means any administration guides, installation and user
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guides, and release notes that are provided by Kasten to Licensee with the
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Software.
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1.5 "Intellectual Property Rights" means patents, design patents, copyrights,
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trademarks, Confidential Information, know-how, trade secrets, moral rights, and
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any other intellectual property rights recognized in any country or jurisdiction
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in the world.
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1.6 "Node" means a single physical or virtual computing machine recognizable by
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the Software as a unique device. Nodes must be owned or leased by Licensee or an
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entity controlled by, controlling or under common control with Licensee.
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1.7 "Edition" means a unique identifier for each distinct product that is made
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available by Kasten and that can be licensed, including summary information
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regarding any associated functionality, features, or restrictions specific to
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the Edition.
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1.8 "Open Source Software" means software delivered to Licensee hereunder that
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is subject to the provisions of any open source license agreement.
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1.9 "Purchase Agreement" means a separate commercial agreement, if applicable,
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between Kasten and the Licensee that contains the terms for the licensing of a
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specific Edition of the Software.
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1.10 "Software" means any and all software product Editions licensed to Licensee
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under this Agreement, all as developed by Kasten and delivered to Licensee
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hereunder. Software also includes any Updates provided by Kasten to Licensee.
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For the avoidance of doubt, the definition of Software shall exclude any
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Third-Party Software and Open Source Software.
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1.11 "Third-Party Software" means certain software Kasten licenses from third
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parties and provides to Licensee with the Software, which may include Open
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Source Software.
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1.12 "Update" means a revision of the Software that Kasten makes available to
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customers at no additional cost. The Update includes, if and when applicable and
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available, bug fix patches, maintenance release, minor release, or new major
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releases. Updates are limited only to the Software licensed by Licensee, and
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specifically exclude new product offerings, features, options or functionality
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of the Software that Kasten may choose to license separately, or for an
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additional fee.
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1.13 "Use" means to install activate the processing capabilities of the
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Software, load, execute, access, employ the Software, or display information
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resulting from such capabilities.
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2. LICENSE GRANT AND RESTRICTIONS
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2.1 Enterprise License. Subject to Licensee"s compliance with the terms and
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conditions of this Agreement (including any additional restrictions on
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Licensee"s use of the Software set forth in the Purchase Agreement, if one
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exists, between Licensee and Kasten), Kasten grants to Licensee a non-exclusive,
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non-transferable (except in connection with a permitted assignment of this
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Agreement under Section 14.10 (Assignment), non-sublicensable, limited term
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license to install and use the Software, in object code form only, solely for
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Licensee"s use, unless terminated in accordance with Section 4 (Term and
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Termination).
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2.2 Starter License. This section shall only apply when the Licensee licenses
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Starter Edition of the Software. The license granted herein is for a maximum of
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5 Nodes and for a period of 12 months from the date of the Software release that
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embeds the specific license instance. Updating to a newer Software (minor or
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major) release will always extend the validity of the license by 12 months. If
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the Licensee wishes to upgrade to an Enterprise License instead, the Licensee
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will have to enter into a Purchase Agreement with Kasten which will supersede
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this Agreement. The Licensee is required to provide accurate email and company
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information, if representing a company, when accepting this Agreement. Under no
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circumstances will a Starter License be construed to mean that the Licensee is
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authorized to distribute the Software to any third party for any reason
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whatsoever.
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2.3 Evaluation License. This section shall only apply when the Licensee has
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licensed the Software for an initial evaluation period. The license granted
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herein is valid only one time 30 days, starting from date of installation,
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unless otherwise explicitly designated by Kasten ("Evaluation Period"). Under
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this license the Software can only be used for evaluation purposes. Under no
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circumstances will an Evaluation License be construed to mean that the Licensee
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is authorized to distribute the Software to any third party for any reason
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whatsoever. If the Licensee wishes to upgrade to an Enterprise License instead,
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the Licensee will have to enter into a Purchase Agreement with Kasten which will
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supersede this Agreement.. If the Licensee does not wish to upgrade to an
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Enterprise License at the end of the Evaluation Period the Licensee"s rights
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under the Agreement shall terminate, and the Licensee shall delete all Kasten
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Software.
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2.4 License Restrictions. Except to the extent permitted under this Agreement,
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Licensee will not nor will Licensee allow any third party to: (i) copy, modify,
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adapt, translate or otherwise create derivative works of the Software or the
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Documentation; (ii) reverse engineer, decompile, disassemble or otherwise
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attempt to discover the source code of the Software; (iii) rent, lease, sell,
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assign or otherwise transfer rights in or to the Software or Documentation; (iv)
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remove any proprietary notices or labels from the Software or Documentation; (v)
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publicly disseminate performance information or analysis (including, without
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limitation, benchmarks) relating to the Software. Licensee will comply with all
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applicable laws and regulations in Licensee"s use of and access to the Software
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and Documentation.
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2.5 Responsibility for Use. The Software and Documentation may be used only by
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Authorized Persons and in conformance with this Agreement. Licensee shall be
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responsible for the proper use and protection of the Software and Documentation
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and is responsible for: (i) installing, managing, operating, and physically
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controlling the Software and the results obtained from using the Software; (ii)
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using the Software within the operating environment specified in the
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Documentation; and; (iii) establishing and maintaining such recovery and data
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protection and security procedures as necessary for Licensee's service and
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operation and/or as may be specified by Kasten from time to time.
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2.6 United States Government Users. The Software licensed under this Agreement
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is "commercial computer software" as that term is described in DFAR
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252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S.
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Government acquires this commercial computer software and/or commercial computer
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software documentation subject to the terms and this Agreement as specified in
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48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal
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Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf
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of any agency within the Department of Defense ("DOD"), the U.S. Government
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acquires this commercial computer software and/or commercial computer software
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documentation subject to the terms of this Agreement as specified in 48 C.F.R.
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227.7202 of the DOD FAR Supplement and its successors.
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3. SUPPORT
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3.1 During the Term (as defined below) and subject to Licensee’s compliance
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with the terms and conditions of this Agreement, Licensee may submit queries and
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requests for support for Enterprise Licenses by submitting Service Requests via Veeam
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Support Portal (https://my.veeam.com). Support is not provided for Starter and Evaluation
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Licenses. Licensee shall be entitled to the support service-level agreement specified
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in the relevant order form or purchase order (“Order Form”) between Licensee and the
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Reseller and as set forth in Kasten’s Support Policy, a copy of which can be found
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at https://www.kasten.io/support-services-policy. Licensee shall also be permitted to
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download and install all Updates released by Kasten during the Term and made generally
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available to users of the Software. Software versions with all updates and upgrades
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installed is supported for six months from the date of release of that version.
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3.2 Starter Edition Support. If the Licensee has licensed Starter Edition of
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the Software, you will have access to the Kasten K10 Support Community
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(https://community.veeam.com/groups/kasten-k10-support-92), but Kasten cannot guarantee
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a service level of any sort. Should a higher level of support be needed, Licensee has
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the option to consider entering into a Purchase Agreement with Kasten for licensing a
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different Edition of the Software.
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4. TERM AND TERMINATION
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4.1 Term. The term of this Agreement, except for Starter and Evaluation
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Licenses, shall commence on the Effective Date and shall, unless terminated
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earlier in accordance with the provisions of Section 4.2 below, remain in force
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for the Subscription Period as set forth in the applicable Order Form(s) (the
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"Term"). The parties may extend the Term of this Agreement beyond the
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Subscription Period by executing additional Order Form(s) and Licensee"s payment
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of additional licensing fees. The term of this Agreement for the Starter and
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Evaluation Licenses will coincide with the term for Starter Edition (as stated
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in section 2.2) and the term for Evaluation Period (as stated in section 2.3),
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respectively
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4.2 Termination. Either party may immediately terminate this
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Agreement and the licenses granted hereunder if the other party (1) becomes
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insolvent and"becomes unwilling or unable to meet its obligations under this
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Agreement, (2) files a petition in bankruptcy, (3) is subject to the filing of
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an involuntary petition for bankruptcy which is not rescinded within a period of
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forty-five (45) days, (4) fails to cure a material breach of any material term
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or condition of this Agreement within thirty (30) days of receipt of written
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notice specifying such breach, or (5) materially breaches its obligations of
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confidentiality hereunder.
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4.3 Effects of Termination. Upon expiration or
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termination of this Agreement for any reason, (i) any amounts owed to Kasten
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under this Agreement will be immediately due and payable; (ii) all licensed
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rights granted in this Agreement will immediately cease; and (iii) Licensee will
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promptly discontinue all use of the Software and Documentation and return to
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Kasten any Kasten Confidential Information in Licensee"s possession or control.
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4.4 Survival. The following Sections of this Agreement will remain in effect
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following the expiration or termination of these General Terms for any reason:
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4.3 (Effects of Termination), 4.4 (Survival), 5 (Third Party Software) 5
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(Confidentiality), 9 (Ownership), 10.2 (Third-Party Software), 10.3 (Warranty
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Disclaimer), 11 (Limitations of Liability), 12.2 (Exceptions to Kasten
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Obligation), 13 (Export) and 14 (General).
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5. THIRD PARTY AND OPEN SOURCE SOFTWARE Certain Third-Party Software or Open
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Source Software (Kasten can provide a list upon request) that may be provided
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with the Software may be subject to various other terms and conditions imposed
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by the licensors of such Third-Party Software or Open Source Software. The
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terms of Licensee"s use of the Third-Party Software or Open Source Software is
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subject to and governed by the respective Third-Party Software and Open Source
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licenses, except that this Section 5 (Third-Party Software), Section 10.2 (Third
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Party Software), 10.3 (Warranty Disclaimer), Section 11 (Limitations of
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Liability), and Section 14 (General) of this Agreement also govern Licensee"s
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use of the Third-Party Software. To the extent applicable to Licensee"s use of
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such Third-Party Software and Open Source, Licensee agrees to comply with the
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terms and conditions contained in all such Third-Party Software and Open Source
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licenses.
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6. CONFIDENTIALITY Neither party will use any Confidential Information of the
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other party except as expressly permitted by this Agreement or as expressly
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authorized in writing by the disclosing party. The receiving party shall use
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the same degree of care to protect the disclosing party"s Confidential
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Information as it uses to protect its own Confidential Information of like
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nature, but in no circumstances less than a commercially reasonable standard of
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care. The receiving party may not disclose the disclosing party"s Confidential
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Information to any person or entity other than to (i) (a) Authorized Persons in
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the case the receiving party is Licensee, and (b) Kasten"s employees and
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contractors in the case the receiving party is Kasten, and (ii) who need access
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to such Confidential Information solely for the purpose of fulfilling that
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party"s obligations or exercising that party"s rights hereunder. The foregoing
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obligations will not restrict the receiving party from disclosing Confidential
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Information of the disclosing party: (1) pursuant to the order or requirement of
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a court, administrative agency, or other governmental body, provided that the
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receiving party required to make such a disclosure gives reasonable notice to
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the disclosing party prior to such disclosure; and (2) on a confidential basis
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to its legal and financial advisors. Kasten may identify Licensee in its
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customer lists in online and print marketing materials.
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7. FEES Fees for Enterprise License shall be set forth in separate Order Form(s)
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attached to a Purchase Agreement, between the Licensee and Kasten.
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If Licensee has obtained the Software through an Authorized Reseller, fees for
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licensing shall be invoiced directly by the Authorized Reseller.
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If no Purchase Agreement exists, during the term of this Agreement, Kasten
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shall license the Starter Edition only and no other Edition of the Software
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"at no charge" to Licensee.
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8. USAGE DATA Kasten may collect, accumulate, and aggregate certain usage
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statistics in order to analyze usage of the Software, make improvements, and
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potentially develop new products. Kasten may use aggregated anonymized data for
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any purpose that Kasten, at its own discretion, may consider appropriate.
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9. OWNERSHIP As between Kasten and Licensee, all right, title and interest in
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the Software, Documentation and any other Kasten materials furnished or made
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available hereunder, all modifications and enhancements thereof, and all
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suggestions, ideas and feedback proposed by Licensee regarding the Software and
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Documentation, including all copyright rights, patent rights and other
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Intellectual Property Rights in each of the foregoing, belong to and are
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retained solely by Kasten or Kasten"s licensors and providers, as applicable.
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Licensee hereby does and will irrevocably assign to Kasten all evaluations,
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ideas, feedback and suggestions made by Licensee to Kasten regarding the
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Software and Documentation (collectively, "Feedback") and all Intellectual
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Property Rights in and to the Feedback. Except as expressly provided herein, no
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licenses of any kind are granted hereunder, whether by implication, estoppel, or
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otherwise.
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10. LIMITED WARRANTY AND DISCLAIMERS
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10.1 Limited Warranty. Kasten warrants for a period of thirty (30) days from
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the Effective Date that the Software will materially conform to Kasten"s
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then-current Documentation (the "Warranty Period") when properly installed on a
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computer for which a license is granted hereunder. Licensee"s exclusive remedy
|
|||
|
|
for a breach of this Section 10.1 is that Kasten shall, at its option, use
|
|||
|
|
commercially reasonable efforts to correct or replace the Software, or refund
|
|||
|
|
all or a portion of the fees paid by Licensee pursuant to the Purchase
|
|||
|
|
Agreement. Kasten, in its sole discretion, may revise this limited warranty from
|
|||
|
|
time to time.
|
|||
|
|
|
|||
|
|
10.2 Third-Party Software. Except as expressly set forth in this Agreement,
|
|||
|
|
Third-Party Software (including any Open Source Software) are provided on an
|
|||
|
|
"as-is" basis at the sole risk of Licensee. Notwithstanding any language to the
|
|||
|
|
contrary in this Agreement, Kasten makes no express or implied warranties of any
|
|||
|
|
kind with respect to Third-Party Software provided to Licensee and shall not be
|
|||
|
|
liable for any damages regarding the use or operation of the Third-Party
|
|||
|
|
Software furnished under this Agreement. Any and all express or implied
|
|||
|
|
warranties, if any, arising from the license of Third-Party Software shall be
|
|||
|
|
those warranties running from the third party manufacturer or licensor to
|
|||
|
|
Licensee.
|
|||
|
|
|
|||
|
|
10.3 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE,
|
|||
|
|
KASTEN AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,
|
|||
|
|
STATUTORY OR OTHERWISE, RELATING TO THE SOFTWARE OR TO KASTEN"S MAINTENANCE,
|
|||
|
|
PROFESSIONAL OR OTHER SERVICES. KASTEN SPECIFICALLY DISCLAIMS ALL IMPLIED
|
|||
|
|
WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
|
|||
|
|
AND NON-INFRINGEMENT. KASTEN AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT OR
|
|||
|
|
REPRESENT THAT THE SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS USE WILL BE
|
|||
|
|
UNINTERRUPTED OR ERROR-FREE. THIS DISCLAIMER SHALL APPLY NOTWITHSTANDING THE
|
|||
|
|
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. EXCEPT
|
|||
|
|
AS STATED ABOVE, KASTEN AND ITS SUPPLIERS PROVIDE THE SOFTWARE ON AN "AS IS"
|
|||
|
|
BASIS. KASTEN PROVIDES NO WARRANTIES WITH RESPECT TO THIRD PARTY SOFTWARE AND
|
|||
|
|
OPEN SOURCE SOFTWARE.
|
|||
|
|
|
|||
|
|
|
|||
|
|
11. LIMITATIONS OF LIABILITY
|
|||
|
|
|
|||
|
|
11.1 EXCLUSION OF CERTAIN DAMAGES. EXCEPT FOR BREACHES OF SECTION 6
|
|||
|
|
(CONFIDENTIALITY) OR SECTION 9 (OWNERSHIP), IN NO EVENT WILL EITHER PARTY BE
|
|||
|
|
LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR
|
|||
|
|
RELIANCE DAMAGES, INCLUDING ANY LOST DATA, LOSS OF USE AND LOST PROFITS, ARISING
|
|||
|
|
FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE OR DOCUMENTATION, EVEN IF SUCH
|
|||
|
|
PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE
|
|||
|
|
PREVENTED, SUCH DAMAGES.
|
|||
|
|
|
|||
|
|
11.2 LIMITATION OF DAMAGES. EXCEPT FOR THE BREACHES OF SECTION 6
|
|||
|
|
(CONFIDENTIALITY) OR SECTION 9 (OWNERSHIP), EACH PARTY"S TOTAL CUMULATIVE
|
|||
|
|
LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SOFTWARE,
|
|||
|
|
DOCUMENTATION, OR SERVICES PROVIDED BY KASTEN, WILL NOT EXCEED THE AMOUNT OF
|
|||
|
|
FEES PAID OR PAYABLE BY LICENSEE FOR THE SOFTWARE, DOCUMENTATION OR SERVICES
|
|||
|
|
GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS FOLLOWING THE EFFECTIVE DATE.
|
|||
|
|
LICENSEE AGREES THAT KASTEN"S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF
|
|||
|
|
ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. IN THE CASE OF KASTEN"S
|
|||
|
|
INDEMNIFICATION OBLIGATIONS, KASTEN"S CUMULATIVE LIABILITY UNDER THIS AGREEMENT
|
|||
|
|
SHALL BE LIMITED TO THE SUM OF THE LICENSE FEES PAID OR PAYABLE BY LICENSEE FOR
|
|||
|
|
THE SOFTWARE, DOCUMENTATION OR SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE
|
|||
|
|
(12) MONTHS FOLLOWING THE EFFECTIVE DATE.
|
|||
|
|
|
|||
|
|
11.3 THIRD PARTY SOFTWARE. NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY IN THIS
|
|||
|
|
AGREEMENT, KASTEN SHALL NOT BE LIABLE FOR ANY DAMAGES REGARDING THE USE OR
|
|||
|
|
OPERATION OF ANY THIRD-PARTY SOFTWARE FURNISHED UNDER THIS AGREEMENT.
|
|||
|
|
|
|||
|
|
11.4 LIMITATION OF ACTIONS. IN NO EVENT MAY LICENSEE BRING ANY CAUSE OF ACTION
|
|||
|
|
RELATED TO THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE OCCURRENCE OF THE
|
|||
|
|
EVENT GIVING RISE TO THE LIABILITY.
|
|||
|
|
|
|||
|
|
|
|||
|
|
12. EXPORT
|
|||
|
|
The Software, Documentation and related technical data may be subject
|
|||
|
|
to U.S. export control laws, including without limitation the U.S. Export
|
|||
|
|
Administration Act and its associated regulations, and may be subject to export
|
|||
|
|
or import regulations in other countries. Licensee shall comply with all such
|
|||
|
|
regulations and agrees to obtain all necessary licenses to export, re-export, or
|
|||
|
|
import the Software, Documentation and related technical data.
|
|||
|
|
|
|||
|
|
|
|||
|
|
13. GENERAL
|
|||
|
|
|
|||
|
|
13.1 No Agency. Kasten and Licensee each acknowledge and agree that the
|
|||
|
|
relationship established by this Agreement is that of independent contractors,
|
|||
|
|
and nothing contained in this Agreement shall be construed to: (1) give either
|
|||
|
|
party the power to direct or control the day to day activities of the other; (2)
|
|||
|
|
deem the parties to be acting as partners, joint venturers, co owners or
|
|||
|
|
otherwise as participants in a joint undertaking; or (3) permit either party or
|
|||
|
|
any of either party"s officers, directors, employees, agents or representatives
|
|||
|
|
to create or assume any obligation on behalf of or for the account of the other
|
|||
|
|
party for any purpose whatsoever.
|
|||
|
|
|
|||
|
|
13.2 Compliance with Laws. Each party agrees to comply with all applicable
|
|||
|
|
laws, regulations, and ordinances relating to their performance hereunder.
|
|||
|
|
Without limiting the foregoing, Licensee warrants and covenants that it will
|
|||
|
|
comply with all then current laws and regulations of the United States and other
|
|||
|
|
jurisdictions relating or applicable to Licensee"s use of the Software and
|
|||
|
|
Documentation including, without limitation, those concerning Intellectual
|
|||
|
|
Property Rights, invasion of privacy, defamation, and the import and export of
|
|||
|
|
Software and Documentation.
|
|||
|
|
|
|||
|
|
13.3 Force Majeure. Except for the duty to pay money, neither party shall be
|
|||
|
|
liable hereunder by reason of any failure or delay in the performance of its
|
|||
|
|
obligations hereunder on account of strikes, riots, fires, flood, storm,
|
|||
|
|
explosions, acts of God, war, governmental action, earthquakes, or any other
|
|||
|
|
cause which is beyond the reasonable control of such party.
|
|||
|
|
|
|||
|
|
13.4 Governing Law; Venue and Jurisdiction. This Agreement shall be interpreted
|
|||
|
|
according to the laws of the State of California without regard to or
|
|||
|
|
application of choice of law rules or principles. The parties expressly agree
|
|||
|
|
that the United Nations Convention on Contracts for the International Sale of
|
|||
|
|
Goods and the Uniform Computer Information Transactions Act will not apply. Any
|
|||
|
|
legal action or proceeding arising under this Agreement will be brought
|
|||
|
|
exclusively in the federal or state courts located in Santa Clara County,
|
|||
|
|
California and the parties hereby consent to the personal jurisdiction and venue
|
|||
|
|
therein.
|
|||
|
|
|
|||
|
|
13.5 Injunctive Relief. The parties agree that monetary damages would not be an
|
|||
|
|
adequate remedy for the breach of certain provisions of this Agreement,
|
|||
|
|
including, without limitation, all provisions concerning infringement,
|
|||
|
|
confidentiality and nondisclosure, or limitation on permitted use of the
|
|||
|
|
Software or Documentation. The parties further agree that, in the event of such
|
|||
|
|
breach, injunctive relief would be necessary to prevent irreparable injury.
|
|||
|
|
Accordingly, either party shall have the right to seek injunctive relief or
|
|||
|
|
similar equitable remedies to enforce such party's rights under the pertinent
|
|||
|
|
provisions of this Agreement, without limiting its right to pursue any other
|
|||
|
|
legal remedies available to it.
|
|||
|
|
|
|||
|
|
13.6 Entire Agreement and Waiver. This Agreement and any exhibits hereto shall
|
|||
|
|
constitute the entire agreement and contains all terms and conditions between
|
|||
|
|
Kasten and Licensee with respect to the subject matter hereof and all prior
|
|||
|
|
agreements, representations, and statement with respect to such subject matter
|
|||
|
|
are superseded hereby. This Agreement may be changed only by written agreement
|
|||
|
|
signed by both Kasten and Licensee. No failure of either party to exercise or
|
|||
|
|
enforce any of its rights under this Agreement shall act as a waiver of
|
|||
|
|
subsequent breaches; and the waiver of any breach shall not act as a waiver of
|
|||
|
|
subsequent breaches.
|
|||
|
|
|
|||
|
|
13.7 Severability. In the event any provision of this Agreement is held by a
|
|||
|
|
court or other tribunal of competent jurisdiction to be unenforceable, that
|
|||
|
|
provision will be enforced to the maximum extent permissible under applicable
|
|||
|
|
law and the other provisions of this Agreement will remain in full force and
|
|||
|
|
effect. The parties further agree that in the event such provision is an
|
|||
|
|
essential part of this Agreement, they will begin negotiations for a suitable
|
|||
|
|
replacement provision.
|
|||
|
|
|
|||
|
|
13.8 Counterparts. This Agreement may be executed in any number of
|
|||
|
|
counterparts, each of which, when so executed and delivered (including by
|
|||
|
|
facsimile), shall be deemed an original, and all of which shall constitute one
|
|||
|
|
and the same agreement.
|
|||
|
|
|
|||
|
|
13.9 Binding Effect. This Agreement shall be binding upon and shall inure to
|
|||
|
|
the benefit of the respective parties hereto, their respective successors and
|
|||
|
|
permitted assigns.
|
|||
|
|
|
|||
|
|
13.10 Assignment. Neither party may, without the prior written consent of the
|
|||
|
|
other party (which shall not be unreasonably withheld), assign this Agreement,
|
|||
|
|
in whole or in part, either voluntarily or by operation of law, and any attempt
|
|||
|
|
to do so shall be a material default of this Agreement and shall be void.
|
|||
|
|
Notwithstanding the foregoing, Kasten may assign its rights and benefits and
|
|||
|
|
delegate its duties and obligations under this Agreement without the consent of
|
|||
|
|
Licensee in connection with a merger, reorganization or sale of all or
|
|||
|
|
substantially all relevant assets of the assigning party; in each case provided
|
|||
|
|
that such successor assumes the assigning party"s obligations under this
|
|||
|
|
Agreement.
|
|||
|
|
|