The software known as Kyno, including all related materials, documentation, updates, upgrades and other modifications (collectively, the “Software”), is now owned, made available and supported by Signiant, Inc. (“Signiant”, “we” or “us”).
If you purchased a license to the Software prior to March 12, 2021 then your use of the Software continues to be governed by the End User License Agreement between you or your organization and Lesspain Gesellschaft für Softwareentwicklung mbH & Co. KG. A copy of the most recent version of that agreement is available at https://www.lesspain.software/kyno/eula/v1.
This End-User License Agreement (this “Agreement”) applies to (i) new licenses to the Software, (ii) support provided by us for your existing copy of the Software, and (iii) Software updates provided by us, including renewals of the right to receive such updates.
1.1. This Agreement is a legal agreement between you, as the licensee of the Software, and Signiant, as the licensor of the Software.
1.2. By downloading, installing, copying or using the Software on any computer, you agree to be bound by the terms of this Agreement, which both grants you rights and imposes obligations upon you. If you disagree with any of the terms and conditions of this Agreement then you must not install, copy and/or use the Software.
1.3. We may revise this Agreement from time to time without prior notice or liability to you. Any such revised version of this Agreement shall apply as soon as it is posted at https://lesspain.software/kyno/eula/. By continuing to use the Software, you are indicating your acceptance of the then-current version of this Agreement. If you do not agree to the terms of this Agreement, as revised from time to time, we are is unwilling to license the Software to you and have the right to terminate this Agreement, in which case you must contact us for information on returning your copy of the Software.
2.1. As between Signiant and you, the Software, including, but not limited to, any images, photographs, animation, video, audio, music, text and other materials incorporated into or provided with the Software, is owned by Signiant. The structure, organization and code of the Software are valuable trade secrets of Signiant. The Software is protected by copyright and other intellectual property laws and international treaties.
2.2. You agree that, as between Signiant and you, Signiant owns all right, title and interest, including without limitation all copyright, patent, trademark, trade secret and other intellectual property and proprietary rights, in and to the Software.
2.3. Except as expressly set forth in this Agreement, this Agreement does not grant you any intellectual property rights in the Software, and does not include any rights of ownership. You acknowledge and agree that you have no right to have access to the Software in source code form, except as expressly set forth otherwise in this Agreement (see section THIRD PARTY SOFTWARE) and that you shall not use the Software except as specified in this Agreement.
3.1. The Software is licensed, not sold.
3.2. Subject to the terms and conditions of this Agreement, Signiant hereby grants you a personal, limited, non-exclusive, non-transferable and non-sublicenseable license to install and operate the Software in machine readable (object code) form on one (1) central processing unit (“computer”) that you own or that you are licensed or legally entitled to use.
4.1. You may transfer the Software from one to another of your computers by clearing the registration details and removing the Software from your old computer before installing it on your new one provided that you uninstall the Software from your old computer entirely and that you retain no copies of the Software, including any and all copies, components, parts, media, materials, versions, updates and upgrades of the Software on your old computer.
4.2. If you are an individual and are the main user of more than one computer you may copy the software and install a single user registration code onto no more than two (2) computers provided that:
You are permitted to make one (1) back-up or archival copy of the Software in machine readable (object code) form to support your authorized use under this Agreement. Such copy shall be labeled "Copy for Back-Up Only". All copies are the sole property of Signiant.
If you download or install a free-of-charge trial version of the Software, subject to your compliance with the terms and conditions of this Agreement, we grant you, solely for evaluation purposes, a limited non-exclusive, non-transferable and non-sublicenseable license for a limited trial period (as specified by Signiant) commencing on the date you first install the Software on any computer, to use one (1) copy of the Software to evaluate the Software, and only for your personal, noncommercial use on a single computer or mobile device, as applicable. The sole purpose of this evaluation is to assess the Software’s suitability for your purposes and requirements. You acknowledge and agree that certain features of the Software which are normally available may be disabled in certain trial versions of the Software and that the Software may stop functioning altogether upon expiry of the trial period.
7.1. You agree not to use the Software on any computer that you do not own or that you are not licensed or that you are not otherwise legally entitled to use.
7.2. You agree not to transfer, sublicense or re-sell the Software to any third party in any manner.
7.3. You agree that you may not and will not do, or permit any other person or entity to do, any of the following:
Notwithstanding the Software license granted to you under this Agreement, you acknowledge that the Software may include third party software that may be subject to separate terms and conditions deviating from this Agreement. Certain such third party software may be governed by free and/or open source software licenses. As regards open source software, any software approved by the Open Source Initiative or any substantially similar organization to be such open source software may require that the distributor make the software available in source code format. A list of the open source software components included in this Software (each, an “Open Source Software Component”), together with their associated licenses, is posted at http://lesspain.software/kyno/open-source-software/. Such terms and conditions may be changed by the applicable third party at any time. To the extent required by the licenses covering Open Source Software Components, the terms of such licenses will apply in lieu of the terms of this Agreement. To the extent the terms of such licenses prohibit any of the restrictions under this Agreement with respect to any Open Source Software Component, such restrictions will not apply to such Open Source Software Component. To the extent the terms of such licenses require Signiant to make an offer to provide source code in connection with the Software, such offer is hereby made.
Signiant hereby expressly reserves all right, title and interest in and to the Software not expressly licensed to you under this Agreement.
Signiant will electronically deliver to you one (1) copy of the Software for use by you in exercising your rights under the licenses granted under this present Agreement. Delivery shall be deemed complete upon successful completion of the electronic download. Unless otherwise agreed between the parties in a separate written agreement, Signiant shall have no obligation to install or configure the Software for you, or on behalf of you, on your computer. The Software shall be deemed accepted upon delivery. You are solely responsible for installing and operating the Software on your computer in accordance with the information and/or instructions provided by Signiant.
Any registration keys or other codes that we supply to you for use of the Software are confidential and personal to you. Any computer files created by the Software and containing details of your registration key are confidential and may not be copied or revealed to anyone else. You agree to keep all such codes confidential and to not make copies or permit their use other than under the conditions permitted by this Agreement. If you intentionally reveal or allow these codes to be used by anyone who is not entitled to use them then you will be liable for any and all losses that we incur as a result.
In consideration of and as a condition to the licenses granted to you under this Agreement, you shall pay to Signiant the fees specified by Signiant at or prior to your download of the Software, which shall be due and payable prior to any delivery of the Software, unless Signiant has agreed to alternative payment and invoicing terms in writing.
All amounts payable under this Agreement are net of all applicable sales, use and other similar taxes and similar charges. You will be responsible for payment of all such taxes (other than taxes based on Signiant's income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of related services. You agree to provide Signiant, upon Signiant’s request, with official receipts issued by the appropriate taxing authority, or such other evidence as Signiant may reasonably request, to establish that such taxes have been paid.
14.1. The term of this Agreement, and the term of the license granted by this Agreement, shall commence upon completion of your download of the Software.
14.2. We may terminate this Agreement at any time at our sole discretion by giving you notice in writing (including by e-mail) and pro-rata refunding any license fees that you have paid for the software. We may immediately terminate the Agreement by giving you notice in writing if we believe you have breached any of the terms of this Agreement and no refund will be due to you.
14.3. You may terminate the Agreement by giving us notice in writing (including by e-mail) and by deleting, destroying or returning all copies of the Software in your possession and any registration codes that may have been issued to you and no refund will be due to you.
14.4. Upon termination of this Agreement for any reason, all rights granted to you under this Agreement shall cease and you must immediately delete, remove and/or return the Software from all computers on which you have installed the Software and promptly destroy or return it to us. In the case of destruction, you may be required to certify such destruction to us.
14.5. Your obligations under this Agreement not to reveal or distribute confidential or copyright information, including but not limited to registration codes or trade secrets related to the internal workings of the software, shall survive termination of this Agreement.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL SIGNIANT, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES OR AGENTS (INCLUDING SUCCESSORS AND ASSIGNS) OR ANY SIGNIANT LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR FOR ANY OTHER INDIRECT DAMAGES SUCH AS, BUT NOT LIMITED TO, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) NOTWITHSTANDING THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, THE AGGREGATE LIABILITY OF SIGNIANT AND ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES AND AGENTS (INCLUDING SUCCESSORS AND ASSIGNS) SHALL BE LIMITED TO THE AMOUNT OF THE FEES PAID BY YOU TO SIGNIANT FOR THE SOFTWARE.
You agree to defend, indemnify and hold harmless Signiant, and its affiliates, directors, officers, employees, representatives and agents ("Indemnified Party(ies)"), against any claim, lawsuit, action, liability, losses and expenses, liens, penalties, including but not limited to reasonable attorneys' fees (collectively, the "Claims") arising out of or relating to your use of the Software or based upon or related to: (i) content, videos or other materials created, processed, posted, reproduced or distributed to the Internet, your Intranet, computer networks, mobile devices or any other media or formats using in any manner the Software; (ii) your negligence or willful misconduct; or (iii) any breach by you of your obligations, representations or warranties under this Agreement. You shall pay all settlements entered into and damages awarded against you and/or Signiant and all cost and expenses incurred (including reasonable attorneys' fees) to the extent based on such Claims.
You shall keep complete and accurate records relating to your use of the Software pursuant to this Agreement during the term and for two (2) years after expiration or termination of this Agreement ("Audit Period"). During the Audit Period, Signiant shall have the right, upon reasonable prior notice to you and during your normal business hours, to audit your use of the Software and to inspect your records and networks and computer systems related to any copies of the Software, or portions thereof, made by you.
You agree that Signiant may collect and use technical data and related information, including but not limited to technical information and statistics about your computer, system and application software, and peripherals, that is gathered periodically in the background by the Software in an anonymous manner to facilitate the provision of Software updates, product support, and other services to you (if any) related to the Software and to enable Signiant to understand which parts of the Software are used most, the frequency of use of the various parts of the Software and which parts may not be functioning as expected. Signiant may use this information, as long as it is in a form that does not personally identify you, to monitor the performance of its products, improve its products, to provide services or technologies to you and to determine and allocate financial payments Signiant may owe to any third party for third party software, materials and/or licenses embodied in the Software (if any).
Except as may be provided in a separate agreement between Signiant and you, if any, Signiant is under no obligation to maintain or support the Software and Signiant has no obligation to furnish you with any further assistance, technical support, documentation, software, update, upgrades, or information of any nature or kind.
20.1. From time to time, Signiant may automatically update, upgrade or otherwise modify the Software, including but not limited to, for purposes of improvement of functions, error correction, enhancement of security, and other updates and upgrades at such time as you interact with Signiant's or third parties' servers, or otherwise. Such updates, upgrades or other modifications may delete or change the nature of features or other aspects of the Software, including but not limited to, functions you may rely upon. You acknowledge and agree that such activities may occur at Signiant's sole discretion and that Signiant may condition continued use of the Software upon your complete installation or acceptance of such update, upgrade or modifications.
20.2. Any such updates, upgrades or other modifications shall be deemed to be, and shall constitute part of, the Software for the purposes of this Agreement. By acceptance of this Agreement, you consent to such updates, upgrades or other modifications. The terms of this Agreement will govern any updates, upgrades or other modifications provided by Signiant, unless such updates, upgrades or other modifications are accompanied by a separate license agreement in which case the terms of that license agreement will govern.
You agree that the internal workings of the Software and any computer files provided as part of the Software are confidential trade secrets solely owned by Signiant. If you acquire knowledge about the internal workings of the Software or any other related trade secrets of Signiant, you agree not to disclose, distribute, disseminate or publish any such information without our prior written agreement. You recognize that trade secrets and license enforcement mechanisms are protected by law in many jurisdictions and infringement of these conditions (even for "personal" use) may be a criminal offence punishable by law. Any attempts to circumvent or defeat any license protection mechanisms in the Software, or knowingly using a registration code which was not issued or authorized by us for your use, are expressly prohibited by this Agreement and may constitute a serious criminal offence in many jurisdictions, punishable by unlimited fines and/or imprisonment.
The relationship between you and us is that of an independent contractor and neither this Agreement, nor any performance hereunder shall create an employer-employee relationship or make either party an agent of the other. In the event of a conflict between this Agreement and any ordering document, the terms and conditions of this Agreement will govern. You shall not assign, delegate, sublicense or otherwise transfer its rights or obligations under this Agreement without Signiant’s prior written consent. A waiver by Signiant of any requirement hereunder in one instance will not constitute a waiver of such requirement in any other instance. If any provision of this Agreement is deemed illegal or unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. The headings used in this Agreement are for convenience only and will not create any rights or obligations or affect the meaning or interpretation of this Agreement. This Agreement and all matters arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A, without regard to its choice of law provisions. The United Nations Convention on Contracts for International Sale of Goods is specifically excluded. All proceedings relating to or arising out of the subject matter hereof will be maintained exclusively in the courts situated in Boston, Massachusetts, U.S.A., and the parties hereby consent to personal jurisdiction and venue therein and hereby waive any right to object to personal jurisdiction or venue therein. This Agreement is the entire agreement between the parties as to its subject matter and supersedes all other agreements, proposals, representations and other understandings regarding the Software, whether oral or written. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been made upon receipt by the receiving party, if to Signiant, at firstname.lastname@example.org and if to you, at the email address Signiant has on file for you. Signiant shall have no liability to you for any delay in performance of the Agreement to the extent that such delay is due to any events outside Signiant’s reasonable control, including but not limited to acts of God, pandemics, war, flood, fire, labor disputes, supplier and/or subcontractor delays or defaults, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions, material shortages and any other similar events.