KADA Software License Agreement
Updated 25/02/2022
Thank you for choosing KADA. Your use of the Software and our provision of the Software is governed by the terms and conditions of this KADA Software Agreement (Terms). You can accept these Terms by registering an account with us, placing an Order for the Software, or by signing a copy of these Terms which has been signed by us. If you are entering into these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case, the terms "Customer", “You” or “Your” shall refer to such entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Software.
These Terms are effective as of the date when signed by the last party (the “Effective Date”).
1 Term
These Terms are effective as of the Subscription Term Start Date and expire on the date of expiration or termination of all Subscription Terms. For the avoidance of doubt, Customer is not under any obligation to enter into a Subscription Term and if it does not provide notice that it wishes to do so by nominating a Subscription Term Start Date, the Order Form and Terms will be of no effect except to the extent they relate to the Statement of Work.
2 Suspension/Termination
2.1 KADA may terminate these Terms in respect of a Customer Member if the Customer Member:
(a) fails to cure any material breach of these Terms within thirty (30) days after notice; or
(b) is or is deemed to be insolvent, enters into any arrangement or composition with its creditors, goes into liquidation or has a receiver, receiver and manager or administrator appointed.
2.2 A Customer Member may terminate these Terms in respect of itself or the Customer if the Supplier:
(a) fails to cure any material breach of these Terms within thirty (30) days after notice; or
(b) is or is deemed to be insolvent, enters into any arrangement or composition with its creditors, goes into liquidation or has a receiver, receiver and manager or administrator appointed.
2.3 A Customer Member may choose to stop using the Software and terminate these Terms without cause at any time for any reason upon written notice to us, but, upon any such termination
(a) it will not be entitled to a refund of any re-paid fees and
(b) if it has not already paid all applicable fees for the then-current Subscription Term, any such fees that are outstanding will become immediately due and payable.
2.4 Upon any expiration or termination of these Terms, the Customer Member must cease using the Software and delete (or at our request, return) all KADA Confidential Information or Software in its possession. Upon any expiration or termination of these Terms, or upon request, we must delete (or at your request, return) all of your Confidential Information or Your Data in our possession. Each party will certify such deletion upon request. This clause does not apply to the delivery up or destruction of materials that a party is required to keep for the purposes of legal compliance, provided that the party continues to comply with the clause 6 of these Terms in relation to the retained materials.
2.5 Upon any expiration or termination of these Terms, you will have access to Your Data for 90 days, after which we must delete all of Your Data and all of your Confidential Information unless we are legally prohibited from doing so.
2.6 If these Terms are terminated for any reason (except if we properly terminate these Terms pursuant to clause 2.1), we will refund you any prepaid fees covering the remainder of any then current Subscription Term and you will not be required to pay any further fees for the then current Subscription Term. We will provide the refund within 30 days of termination.
3 Billing, Renewals & Payment
3.1 The Software is offered on a monthly or annual subscription basis, unless otherwise specified in an Order or otherwise agreed in writing.
3.2 If you wish to renew your subscription, you may provide a notice of renewal in writing by contacting our Support team (contact@kada.ai). All renewals are subject to the applicable software product continuing to be offered and will be charged at the then-current rates. We shall provide renewal notification 90 days before the end of the Subscription Term together with a new Order Form.
3.3 You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to KADA by emailing the PO number to contact@kada.ai. Unless otherwise provided in these Terms, all amounts are non-refundable, non-cancellable and non-creditable.
3.4 We will deliver the login instructions for the Software to your account or through other reasonable means no later than when we have received payment of the applicable fees. We are responsible for making sure that you can access your account and use the Software once we have received payment and your Order has been processed. All deliveries under these Terms will be electronic.
4 Software
4.1 KADA will, during the Term, provide the Software to you in accordance with these Terms, and in accordance with each Order. The Software is available as self-hosted software on your equipment, on a ‘software as a service” on our equipment, or on a hybrid basis where you install collector code provided by us on your equipment which removes literals and then passes data to the Software on our equipment for processing. Each Order will specify how you will access the Software. KADA and the Software does not create, edit or delete data. KADA and the Software does not compute directly on your databases or data sources. Any computation is handled within the Software itself. KADA reserves the right to make changes or updates to the Software at any time without notice provided that such changes or updates do not have a material adverse effect on the utility or functionality of the Software. We represent and warrant that the Software will perform in accordance with the Documentation as well as any other specifications given to the Customer.
4.2 During each Subscription Term KADA will provide Support and Maintenance for the Software in accordance with the KADA Support Policy. Support and Maintenance for the Software includes access to New Releases, if and when available, and any references to “Software” in these Terms include New Releases.
4.3 KADA will retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments that KADA provides which are part of or necessary to use the Software (“KADA Materials”). You may use any KADA Materials provided to you only in connection with the Software.
4.4 You agree to provide KADA with reasonable access to your materials, systems, personnel or other resources (including your instances of the Software) as reasonably necessary for KADA’s provision of the Software (“Customer Materials”). We agree to follow your directions in relation to Customer Materials. If you do not provide KADA with timely access to Customer Materials, you acknowledge that we may be unable to provide the Software in accordance with the applicable Order. You retain your rights in your Customer Materials. We retain our rights in the Software, KADA Materials or other KADA Technology. KADA will use Customer Materials solely for purpose of providing the Software. You represent and warrant that you have all necessary rights in Customer Materials to make them accessible to KADA for such purposes.
5 Your obligations
5.1 You must not:
(a) allow any person to access or use the Software or Documentation, other than the Authorised Users;
(b) except as permitted under these Terms or by any law, copy, modify, alter, rent, lease, reverse engineer, tamper with, decompile or disassemble the KADA Software or Documentation;
(c) use or permit the use of the Software to provide any form of bureau service or for similar activities;
(d) access all or any part of the Software in order to build or provide any similar or competitive goods or services to third parties.
5.2 You must:
(a) provide KADA with all co-operation and information as may be reasonably required by KADA in order to provide the Software;
(b) ensure that in using the Software, all Authorised Users are directed to comply with these Terms; and
(c) ensure that all Authorised Users are directed to comply with these Terms.
5.3 KADA may suspend access to the Software in respect of a Customer Member where it has provided written notice to the Customer Member that there has been any use of the Software that is in breach of these Terms and the Customer Member has failed to remedy such breach within 14 days. Where KADA does so, KADA will provide the Customer Member with reasonable notice of the suspension and the parties will work together to resolve the matter. Nothing in this clause 5.3 limits any other rights or remedies that KADA may have in such circumstances.
6 Warranties
6.1 KADA warrants that:
(a) it has full capacity and authority to enter into these Terms and that it has or will obtain all licences, consents and permits required in relation to the Software;
(b) its performance under this Agreement and the provision of the Software will comply with all applicable laws;
(c) it will comply with all applicable policies, procedures and guidelines of the Customer as notified to KADA from time to time, including the Customer’s Group Ethical Sourcing Policy.
7 Confidentiality
7.1 For the purposes of this clause 7 only, the Customer constitutes one party (on the one hand) and KADA constitutes another party (on the other hand).
7.2 Each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential information of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any technology and any performance information relating to the Software, will be deemed Confidential Information of KADA, and all Customer Materials and Your Data will be deemed to be your Confidential Information, without any marking or further designation.
7.3 Except as expressly authorized herein, the Receiving Party will
(a) hold in confidence and not disclose any Confidential Information to third parties; and
(b) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know for the purposes of these Terms, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this clause 6 and that the Receiving Party remains responsible for compliance by them with the terms of this clause 6.
7.4 The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document:
(a) was rightfully in its possession or known to it prior to receipt of the Confidential Information;
(b) is or has become public knowledge through no fault of the Receiving Party;
(c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or
(d) is independently developed by employees of the Receiving Party who had no access to the Disclosing Party’s Confidential Information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and, if permitted to do so, with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
7.5 A party will not be in breach of clause 7 where the disclosure is required by law or the rules of the Australian Securities Exchange.
8 Privacy
8.1 Each party must comply with the Privacy Act 1988 (Cth) (Privacy Act) in the collection, use, storage and handling of any Personal Information obtained from the other party or reasonably accessible to the other in connection with the Software or these Terms.
8.2 Without limiting clause 8.1, in relation to any Personal Information you provide to KADA or which KADA has access to in connection with your use of the Software, KADA will
(a) only use such Personal Information to the extent necessary to perform its obligations in accordance with these Terms; and
(b) not disclose any such Personal Information to any person (other than its Personnel) without your prior written consent or as required by law.
8.3 KADA acknowledges and agrees that it will not access or attempt to access any Personal Information in your possession in connection with your use of the Software or these Terms. If, despite the foregoing, we do have access to any Personal Information we will notify you in writing without delay and follow your directions in relation to such Personal Information.
9 Intellectual Property
9.1 KADA grants to each Group Member:
(a) a non-exclusive, non-transferable, non-sublicensable right to:
(i) access and use the Software and Documentation during the Subscription Term, subject to any restrictions in the relevant Order and solely for your own business purposes (including for the purposes of providing services to your clients and your related bodies corporate and their clients), in accordance with these Terms; and
(ii) make such copies of the Software and Documentation as you reasonably require in order to make full use of the Software and for backup, testing, business continuity, security and archival purposes.
(b) You acknowledge that these Terms do not transfer to you any Intellectual Property Rights in the Software or the Documentation.
9.2 If you provide KADA with any Your Data, you grant KADA a non-exclusive, non-transferable, non-sublicensable licence for the Subscription Term to use, host and store Your Data solely for the purpose of the providing the Software in accordance with these Terms, and KADA may, with your prior written consent, sublicense these rights to KADA’s subcontractors subject to the provisions of these Terms. KADA will remain responsible to the Customer for the performance, fulfilment and observance of KADA’s obligations under these Terms as if any subcontracting or sublicensing had not occurred.
9.3 KADA acknowledges that these Terms do not transfer to it any Intellectual Property Rights or other rights in Your Data, Customer Materials, or your Confidential Information, and do not give KADA any licence or right to use or disclose Your Data, Customer Materials, or your Confidential Information except in accordance with these Terms.
9.4 Notwithstanding any other provision of these Terms, KADA may collect, analyse and use depersonalised and anonymous data and information relating to the provision, use and performance of the Software supplied under these Terms for the purpose of assisting KADA to assess and improve the Software and develop other software offerings. Any such disclosure will exclude all of your Confidential Information, Personal Information, Customer Materials and Your Data, details of your identity or any Authorised User’s identity.
9.5 During the Subscription Term KADA may use and display Customer’s name, logo, trademarks, and service marks on KADA’s website and in KADA’s marketing materials in connection with identifying Customer as a customer of KADA subject to Customer’s written consent which must be sought by KADA for each instance of use. Upon Customer’s written request, KADA will as soon as practicable remove any such marks from KADA”s website and, to the extent commercially feasible and as soon as practicable, KADA’s marketing materials. If KADA requests, Customer will review and advise intent to participate in a case study, press release and/or cooperate with KADA in speaking to the media, and to speak at a future KADA event but shall not be under any obligation to do so.
10 Liability
10.1 For the purposes of this clause 10 only, the Customer constitutes one party (on the one hand) and KADA constitutes another party (on the other hand).
10.2 NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, , INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
10.3 SUBJECT TO CLAUSE 10.5, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT OF SERVICE FEES ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
10.4 SUBJECT TO THE PROVISIONS OF THESE TERMS, ALL SOFTWARE IS PROVIDED “AS IS,” AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT WE WILL REVIEW YOUR DATA FOR ACCURACY. YOU UNDERSTAND THAT USE OF THE SOFTWARE NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD-PARTY SERVICE PROVIDERS. WE WILL NOT BELIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10.5 CLAUSES 10.2 AND 10.3 DO NOT APPLY TO THE INDEMNITY IN CLAUSE 11, AND DO NOT LIMIT OUR LIABILITY FOR ANY BREACH OF OUR OBLIGATIONS UNDER THESE TERMS IN RELATION TO CLAUSE 7 CONFIDENTIAL INFORMATION, CLAUSE 8 PRIVACY LAW OR CLAUSE 9 AND 11 IP INDEMNIFICATION.
11 IP Indemnification
11.1 KADA agrees to indemnify you and hold you harmless against any claim that use of the Software, the Documentation or the KADA Technology, or the receipt of any services provided by KADA pursuant to these Terms, by you infringes or misappropriates any rights (including Intellectual Property Rights) of any person (“IPR Claim”), and any action, proceeding, damage, loss, liability, cost, charge, expense (including legal costs and expenses on a solicitor and client basis), outgoing or payment paid, suffered or incurred by you arising out of or in connection with an IPR Claim. KADA will have sole control of the defence of any IPR Claim and any resulting settlement negotiations, unless otherwise directed by you. You may elect, by giving notice in writing, to defend the IPR Claim at KADA’s cost (in which case, we must provide all assistance reasonably required by you to defend the IPR Claim, at our cost). You may direct KADA in the conduct of the defence or settlement of any IPR Claim to the extent reasonably necessary to protect your reputation, and KADA must comply with those directions. You agree to provide:
(a) prompt written notice of the IPR Claim;
(b) reasonable assistance, at our expense, in the defence and investigation of the IPR Claim, including providing us with a copy of any documents which set out the IPR Claim. If your use of the Software is (or in our opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion:
(i) procure the right or licence for your continued use of the Software in accordance with the Terms
(ii) substitute substantially functionally similar Software; or
(iii) terminate your right to continue using the Software and refund any fees pre-paid by you for use of the Software for the terminated portion of the applicable Subscription Term.
THIS SECTION 10 STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SOFTWARE, THE DOCUMENTATION AND THE KADA TECHNOLOGY.
12 Open Source
The Software include components subject to the terms and conditions of “open source” software licenses. To the extent applicable, we will identify open source software included in the Software. Some of these licenses require us to provide the open source software to you on the terms of the open source license instead of the terms of the Agreement. In that case, the terms of the open source license will apply, and you will have the rights granted in such licenses to the open source software itself, such as access to source code, right to make modifications, and right to reverse engineer. Notwithstanding the foregoing, if you are using the Software in the form provided to you, in accordance with your permitted scope of use, with no distribution of software to third parties, then none of these open source licenses impose any obligations on you beyond what is stated in the Agreement.
Open source software included in the software:
NGINX: http://nginx.org/LICENSE
Postgres: https://www.postgresql.org/about/licence/
Postgres: https://github.com/apache/lucene-solr/blob/master/LICENSE
TimescaleDB: https://www.timescale.com/legal/licenses
Zookeeper: https://github.com/apache/zookeeper/blob/master/LICENSE.txt
Redis: https://redis.io/docs/stack/license/
Keycloak: https://github.com/keycloak/keycloak/blob/main/LICENSE.txt
13 General
13.1 Entire agreement. These Terms are the entire agreement between the parties about their subject matter and replace all previous agreements, understandings, representations and warranties about that subject matter.
13.2 Variation. Except as otherwise set out in these Terms, no variation of these Terms is effective unless made in writing and signed by each party.
13.3 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to an event which is beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency, provided that such event was not caused by an act or omission of that party, and could not have been prevented, avoided, mitigated, remedied or overcome by that party taking steps a prudent and reasonable person would have taken in the circumstances.
13.4 Relationship of the parties. Nothing in these Terms is intended to constitute a fiduciary relationship or an agency, partnership or trust, and neither party has authority to bind the other party.
13.5 Survival. Clauses 5.2(b), 7, 8, 9.1(b), 9.3, 10, 11, 12 and 13 survive termination or expiry of these Terms, together with any other provision which by its nature is intended to do so.
13.6 Severability. Any provision of these Terms which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity or enforceability of the remainder of these Terms are not affected.
13.7 Waiver. The failure of a party to exercise or delay in exercising a right or power does not operate as a waiver of that right or power and does not preclude the future exercise of that right or power. A waiver is not effective unless it is in writing.
13.8 Cumulative rights. Except as expressly provided in these Terms, the rights of a party under these Terms are in addition to and do not exclude or limit any other rights or remedies provided by law.
13.9 Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from your merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We must not assign our rights and obligations under these Terms (in whole or in part) without your consent. We may, with your prior written consent, permit our related bodies corporate, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms, and we will be responsible for their acts and omissions as if those acts and omissions were committed by us.
13.10 Governing law. These Terms are governed by the laws of Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria, Australia
13.11 Modern slavery. KADA shall:
(a) keep sufficient records to enable you to verify the source of supply of any goods and/or services provided by KADA;
(b) upon your request, provide you with reasonable access to KADA’s records and premises for the purposes of the Modern Slavery Act 2018 (Cth) and any other equivalent laws of any state or territory (“MS Law”); and
(c) report to you any actual or suspected instances of modern slavery (as defined in the MS Law) in the supply chain of any of its goods and/or services.
14 Agreement Definitions
“Authorised User” means an individual who is authorised by you to access and use the Software and the Documentation.
“Your Data” means:
(a) any data provided by or on behalf of you or your Authorised Users that is entered into, stored in, or processed by the Software; and
(b) any data or other materials that is based on or derived from the data described in paragraph (a) and provided to you via the Software.
“Documentation” means any documentation provided by KADA to you under these Terms in connection with the Software.
“KADA Technology” means the Software, KADA Material, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing.
“New Releases” means any bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that KADA makes available to you including as part of Support and Maintenance.
“Order” means KADA’s applicable ordering documentation or other purchase flow referencing these Terms, and Orders may include purchase of Software licences, Support and Maintenance, or renewals.
“Personal Information” means personal information within the meaning given to that term in the Privacy Act.
“Software” means KADA’s commercially available software products (currently designated as “SaaS” or “Enterprise” deployments). Your Order will specify the Software that you may use.
“Subscription Term” means your permitted licence term for the Software, as set forth in an Order
“Support and Maintenance” means KADA’s support and maintenance services for the Software, as further described in the KADA Support Policy. Your level of Support and Maintenance will be specified in your Order.
“We”, “Us”, “Our” or “KADA” means KADA Services Pty Ltd (ABN 75 621 520 376).
“You”, “Customer” or “Your” means the company or other legal entity accepting these Terms.