KENTICO ODYSSEY LICENSE AGREEMENT – BETA TESTING
This Kentico Odyssey License Agreement (the “Agreement”) is made by and between
Kentico Software CZ s.r.o., with its registered office at Nové sady 996/25, Staré Brno, 602 00 Brno, Czech Republic, company registration number 03902803, registered in the Commercial Register maintained by the Regional Court in Brno, file no. C 87324 (the “Provider”) and you (the “Customer”). The Provider and the Customer are collectively referred to as the “Parties” or any of them individually as a “Party”.
By downloading, installing or using the Software (as the term Software is specified in the sec. 1.1 hereof), you signify your express and unconditional consent with the terms of this Agreement. Thereby, a legally binding contract (this Agreement) between you (or the person on behalf of who you act) and the Provider regarding the use of the Software is concluded.
For the avoidance of any doubt, if, prior to downloading, installing or using the Software, you (or your employer, or other person, who has legally allowed you to use the Software on its behalf) have entered into a separate written license agreement with the Provider regarding the use of the Software, the previous section does not apply and such separate licence agreement prevails over the terms of this Agreement.
If you are entering into the Agreement on behalf of your employer or other third person, you represent that you are authorized to do so. Otherwise, the Agreement is concluded between the Provider and you, personally.
1. SUBJECT MATTER OF THE AGREEMENT
1.1 The Provider hereby undertakes to provide the Customer with a Beta-version of the Kentico Odyssey computer program, the next generation digital experience platform, used for creation of websites and alteration of website content (the “Software”) and to grant to the Customer the right to use the Software for beta testing purposes under the conditions hereof.
1.2 Detailed specification of the Software and its functions is available online on the Provider’s website, currently under the following link https://devnet.kentico.com/documentation (the “Software Specification”).
1.3 The Software, including its functionality, may be modified, if necessary. The Customer acknowledges that such modifications may result in a change of the Software functionality and/or the Software Specification. The Customer accepts such changes upon implementation of the respective modification.
1.4 The Provider does not provide any Software-related services (e.g. Maintenance).
2. SOFTWARE DELIVERY
2.1 After conclusion of this Agreement the Provider shall provide to the Customer a license serial number. The Software is delivered upon provision of the license serial number (the date of the provision of the license serial number hereinafter as the “Delivery Date”).
2.2 Upon receipt of the license serial number, the Customer is entitled to generate the Software license key, by registering the license serial number through Provider’s client portal, and to download copies of the Software from Provider’s server.
3. LICENSE
3.1 The Software, including, but not limited to, logos, graphics, trademarks, service marks, technology, whether patentable or unpatentable, copyrights, trade secrets, know-how, documentation, text, software, etc., is Provider’s intellectual property which is owned by, or validly licensed to, the Provider. The Customer shall have no rights, title, or interest in or to the Software other than the right to use it in accordance with the terms of this Agreement.
3.2 On the Delivery Date, the Provider grants to the Customer worldwide, non-exclusive, non-transferable right to use the Software (license) for the purpose of its testing.
3.3 The license is time-limited to the duration of this Agreement.
3.4 The Customer is entitled to use the Software in order to test it in accordance with its function by making a copy of the Software for uploading and saving a website in a computer – server memory, as well as for displaying, running and transmitting on the Internet. The Provider expressly declares that the Software is provided to the Customer in its beta version, which is intended solely for the beta testing purpose. The Customer is not entitled to use the Software for any other purpose, especially not for its commercial use.
3.5 The Customer may not use the Software beyond the limitations described in this Agreement and the Software Specification.
3.6 The Customer is not entitled to anyhow acquire or seek to acquire the source code of the Software (or any part thereof).
3.7 The Customer is not entitled (and shall not permit any third party) to translate, process, alter or otherwise modify the Software.
3.8 The Customer may not transfer, assign or sub-license the license granted under this Agreement, whether wholly or partially, to a third party without the prior written consent of the Provider.
3.9 The license to the Software granted under this Agreement applies to any modifications of the Software provided by the Provider to the Customer under this Agreement as well.
4. BILLING
4.1 The license to use the Software under this Agreement is provided to the Customer free of charge (i.e. the Provider does not charge any fees or payments).
5. CONTENT, CUSTOMER’S DATA
5.1 The Customer is solely responsible for all the content it enters, uploads, or distributes in using the Software and, as between the Parties, the Customer retains all right, title, and interest to any intellectual property rights to this content.
5.2 Furthermore, as between the Parties, the Customer retains all right, title, and interest to any intellectual property rights to all data and information originating from the Customer or its contractors, to which the Provider gains access in connection with the performance of this Agreement.
5.3 The Provider is entitled to collect data related to use of the Software by the Customer for the purpose of improvement of the product and verification of compliance of the use of the Software with license terms. Such data shall contain information regarding the frequency of use of individual parts of the Software and error logs. The collected data shall not contain any particular data created by the Customer, personal data, sensitive data or data on the activities of particular users. Method of collection and a detailed specification of the collected data are contained in the Software Specification. The Provider is entitled to change the scope and method of collection of the data unilaterally. Any such change shall be noted in the Software Specification.
6. CONFIDENTIALITY
6.1 For the purpose of this Agreement, the Confidential Information means any information in any form that either Party acting as the disclosing Party discloses to the other Party acting as the receiving Party explicitly designated as confidential. The Parties agreed that the following information are always designated as Confidential information: (i) particular principles, methods and processes that the Software is based on (including the source code of the Software) or other technical know-how of the Provider and (ii) the Software license keys (the “Confidential Information”). Confidential Information do not include any information which the receiving Party can demonstrate by evidence: (i) is part of the public domain through no fault of the receiving Party, (ii) was rightfully known to the receiving Party without obligation of confidentiality to the disclosing Party prior to the time of its disclosure, or (iii) is, subsequent to disclosure hereunder, rightfully learned from a third party not under a confidentiality obligation to the disclosing Party with respect to such Confidential Information.
6.2 Each Party shall:
6.2.1 not use any Confidential Information of the other Party for any purpose other than the performance of its rights and obligations under this Agreement;
6.2.2 disclose Confidential Information of the other Party only to such Party’s personnel, contractual advisors or other persons legitimately participating in performance of this Agreement, and only on the need to know basis;
6.2.3 treat all Confidential Information of the other Party with the same degree of care as such Party accords its own Confidential Information of a similar nature, but in no case less than reasonable care.
6.3 In the case a disclosing Party’s Confidential Information is required to be disclosed by the receiving Party pursuant to a duly authorized subpoena, court order, or government authority, prior to such disclosure the receiving Party shall promptly inform the disclosing Party and provide the disclosing Party with necessary assistance so that the disclosing Party may seek a protective order or other appropriate remedy to protect against or limit disclosure. Under the duly authorized subpoena, court order, or government authority, the Confidential Information may be disclosed by the receiving Party solely to the extent required. The disclosed Confidential Information shall continue to be the disclosing Party’s Confidential Information for all other purposes.
7. PRIVACY POLICY
7.1 The Provider may process personal data of the Customer (in case he is a natural person) and personal data of persons acting on behalf of the Customer in connection with the performance of the Agreement. The Provider will process such personal data in particular for the purpose of performing the Agreement. Detailed information on how the Provider will process such personal data is provided in the Provider’s Privacy Policy (available online on the Provider’s website, currently under the following link: https://xperience.io/policies/privacy-policy).
7.2 The Customer is obliged to ensure that the personal data of persons acting on behalf of the Customer are delivered to the Provider in accordance with the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”), or any successor legislation to the GDPR (the “Data Protection Legislation”) and that the respective persons are informed that their personal data are delivered to the Provider and for what purpose.
8. THIRD-PARTY SOFTWARE
8.1 The Software contains computer programs and computer graphics that are made by a third party (including open-source solutions) and are subject to third-party rights (the “Third-Party Software”). A list of Third-Party Software is included in the Software Specification. The Provider may amend this list at any time.
8.2 The Third-Party Software is governed by the license terms of the relevant third parties. References to the license terms are included in the list of Third-Party Software in the Software Specification. The Customer shall review these license terms prior to use of the Software. The Customer will indemnify the Provider for any loss or damage, including attorney’s fees, arising from any claims against the Provider due to actions of the Customer which allegedly violate the license terms of the Third-Party Software.
8.3 The Provider represents and warrants that, to its knowledge, the Software does not violate any right to the Third-Party Software.
9. TERM OF THE AGREEMENT
9.1 the Agreement is concluded for 4 months from the Delivery Date (testing period), unless a longer testing period is agreed upon by the Parties. The testing period may be extended if agreed upon by the Parties.
9.2 Either Party may anytime withdraw from this Agreement (without giving any reason). In that case, the Agreement terminates upon delivery of the written notice of termination to other Party.
9.3 Upon termination of this Agreement due to any reason, the Customer’s right to use the Software (license) terminates, and the Customer shall immediately cease all use of the Software and uninstall, delete and destroy all copies of the Software available to the Customer, regardless of form. The Provider reserves the right to require the Customer to provide sufficient evidence that all copies of the Software have been uninstalled, deleted and destroyed.
9.4 Sec. 6, 10 and 11 of this Agreement shall survive the termination of the Agreement together with any other provision which expressly or by implication is intended to come into or continue in force on or after termination of this Agreement. Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of the termination.
10. LIABILITY
10.1 The Customer acknowledges, taking into account the nature of the beta version of the Software, that the scope or quality of the Software is not guaranteed in any way.
10.2 The Customer shall ensure that its network and systems comply with the relevant specifications provided by the Provider from time to time. The Provider bears no liability for the functionality of Customer’s data network, public data networks, hardware and software running on it, backing up of the data, state of other programs used by the Customer or for any potential interference by third parties with other programs used by the Customer.
10.3 The Customer assumes sole responsibility for results obtained from the use of the Software by the Customer, and for conclusions drawn from such use. The Provider shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to the Provider by the Customer in connection with the Software, or any actions taken by the Provider at the Customer's direction.
10.4 THE SOFTWARE MAY CONTAIN ERRORS AND IS PROVIDED FOR BETA-TESTING OF THE SOFTWARE ONLY. THE SOFTWARE IS PROVIDED ON "AS IS" BASIS. ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDED FROM THIS AGREEMENT.
10.5 IN NO EVENT SHALL THE PROVIDER BE LIABLE TO THE CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSSES OR DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST DATA, OR LOST SAVINGS), ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR MAINENANCE, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY FOR DAMAGES TO THE CUSTOMER OR ANY OTHER PERSON EVER EXCEED THE AMOUNT OF USD 1 (ONE UNITED STATES DOLLAR), REGARDLESS OF THE FORM OF THE CLAIM.
11. JURISDICTION
11.1 The Agreement, as well as rights and obligations arising from or in connection with it, shall be governed by the laws of the Czech Republic, without regard to choice of law rules.
11.2 Each Party irrevocably agrees that the state courts of the Czech Republic shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
12. SEVERABILITY
12.1 If any part of the Agreement is found to be invalid under any applicable statute or rule of law, then the Agreement shall remain in full force and effect. Further, when possible, a court shall give effect to the intention of the invalid provision to the fullest extent possible within the law.
13. FULL AGREEMENT
13.1 The Agreement represents full and complete agreement of the Parties and replaces all prior agreements or understandings. For the avoidance of doubts, the Parties explicitly agreed that for the purposes of provision and use of the Software under this Agreement, no terms published on the Provider’s web site are binding, unless expressly referred to in this Agreement.
14. ASSIGNMENT
14.1 The Agreement and its rights and obligations may not be transferred, assigned, or delegated in any manner by the Customer without Provider’s prior written agreement.
14.2 The Customer acknowledges and agrees that the Provider may assign or sub-contract any of its rights or obligations hereunder.
15. CHANGES, WAIVER, NOTICES
15.1 Except as specifically provided otherwise in this Agreement, no amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
15.2 No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15.3 All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this sec.). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid) or by e-mail to e-mail address provided by the other Party for this purpose.
16. NO PARTNERSHIP OR AGENCY
16.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).