Kadena Terms of Use

KADENA TERMS OF USE
 
The following Kadena Terms of Use  (“Terms”) constitutes a legal agreement between you or the entity or company that you represent (“Customer” or “You”) and Cenveo Worldwide Limited (“Cenveo”), which governs Customer’s (a) access to  the website and (b) use of the Kadena Modules and services (”Kadena”). Customer’s use of Kadena is subject to (a) the Terms  set forth below and (b) Cenveo’s Privacy Policy (where applicable), found at http://www.cenveokadena.com/Home/Privacy-Policy and incorporated herein by reference, so please take the time to fully understand how these Terms and Cenveo’s Privacy Policy govern Customer’s relationship with Cenveo and Customer’s use of Kadena.
 
CUSTOMER’S RIGHT TO USE KADENA IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THESE TERMS. BY CLICKING ON THE "ACCEPT" BUTTON AND/OR USING KADENA, YOU ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS.  NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN ANY PREVIOUSLY EXECUTED OR FUTURE SERVICE AGREEMENT OR PURCHASE ORDER BETWEEN CUSTOMER AND CENVEO, THESE TERMS SHALL GOVERN WITH RESPECT TO CUSTOMER’S USE OF KADENA. IF YOU ARE ACCESSING KADENA ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO AGREE TO THESE TERMS ON ITS BEHALF. 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 KADENA.
 
1.         Definitions
  • “Authorized User” means Customer, its affiliated companies and their authorized users, including their employees, agents, contractors, members, customers or providers.  
  • Confidential Information” means all trade secrets, know­how, inventions, developments, software and other financial, business or technical information disclosed by or for a party in relation to these Terms  (such disclosing party, the “disclosing party”) and received by another party (the “receiving party”), but not including any information the receiving party can demonstrate (a)  is already rightfully known by it without restriction, (b) rightfully furnished to it by a third party without restriction and without breach of any obligation to the disclosing party, (c) generally available to the public without breach of these Terms, or (d) independently developed by it without reliance on the Confidential Information of the disclosing party. All pricing information is Cenveo's Confidential Information.
  • Content” means all text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features,  templates, artwork, logos and other materials that may be viewed on, accessed through, or contributed to Kadena .
  • "Customer Data" means Customer and account information, mailing lists, and any other data or materials contributed to, collected, processed and/or retained on Kadena by Customer or its Authorized Users.
  •  “Module” means an individual component of Kadena that enables users to perform specific functions. Each Module (and its specific functions and attributes) is more fully described on Cenveo's website available at: www.cenveokadena.com.
  • Sensitive Data” means data as defined in Section 4.4.
  • Services” means the services provided by Cenveo to Customer under these Terms.
  • Statement of Work or SOW” means a document entered into between Cenveo and Customer that describes the services provided by Cenveo to Customer in the design, customization, implementation and operation of one or more Modules.
  • Systems” means modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by Customer.
  • Updates” means any patch, revision or update to Kadena delivered by Cenveo (or a third party vendor or service provider on Cenveo’s behalf).
 
2.         Services
 
2.1       Services.
 
Subject to these Terms, Cenveo will use commercially reasonable efforts to provide Kadena. At its option, and in its sole discretion, Cenveo may provide Kadena to Customer directly, or indirectly using contractors or other third party vendors or service providers.
 
2.2       Data Storage and Transmission Limits.
 
Use of Kadena by Customer shall not unreasonably interfere with use of Kadena by other Cenveo customers.  Monthly limits are as set forth in the particular Module or applicable SOW. Once an account reaches its monthly limit, You will be notified and given the option of (a) in the case of storage overage, upgrading to a plan with a higher limit or decrease Your storage usage to agreed upon limits or (b) in the case of transmission overage, paying for additional capacity at the then current overage rate for your account (unless otherwise previously mutually agreed upon).
 
2.3       Security Measures.
 
Customer may access Kadena as Cenveo instructs through a combination of one or more user names and passwords.
 
2.4       Passwords.
 
Customer shall take full responsibility and liability for the security of each of its user names and passwords, and shall be solely responsible for all use of Kadena through such user names or passwords. Customer shall immediately notify Cenveo and follow up promptly in writing of any unauthorized use of Kadena or any other breach of security known to Customer.
 
2.5       Prohibited Uses.
 
As a condition of use of Kadena, You shall not use Kadena for any purpose that is prohibited by these Terms.
 
By way of example, and not as a limitation, You shall not upload, submit, distribute, facilitate any of the foregoing, or otherwise use Kadena or interact with Kadena in a manner that:
  • infringes or violates the intellectual property rights or any other rights of any other person or entity (including Cenveo);
  • violates any law or regulation;
  • is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, pornographic, contains or depicts nudity, or otherwise objectionable, as determined by Cenveo in its sole discretion;
  • jeopardizes the security of your Cenveo account or anyone else’s (such as allowing someone else to log in to Kadena as You) attempts, in any manner, to obtain the password, account, or other security information from any other user;
  • violates the security of any computer network, or cracks any passwords or security encryption codes;
  • runs any form of auto­responder or “spam” on Kadena, or any processes that run or are activated while You are not logged into Kadena, or that otherwise interfere with the proper working of Kadena (including by placing an unreasonable load on Kadena’s infrastructure);
  • “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to Kadena or Content (through use of manual or automated means);
  • copies or stores any significant portion of the Content;
  • decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to Kadena.
 
In addition, You shall not (directly or indirectly) or permit any third party to: (a) use any of Cenveo’s Confidential Information to create any software, documentation or service that is similar to Kadena or any documentation provided in connection therewith; (b) modify, translate, or otherwise create derivative works of any part of Kadena, or (c) copy, license, sublicense, sell, resell, encumber, rent, lease, time­share, distribute, transfer or otherwise use or exploit or make available Kadena in any service bureau arrangement or otherwise for the benefit of any third party without the prior written consent of Cenveo. You shall abide by all applicable local, state, national and international laws and regulations, including, without limitation, any export control laws or regulations of the United States of America or any other relevant jurisdiction. Finally, You must be a human. Access to Kadena by “bots” or other automated methods is not permitted.
 
2.6       Changes to Modules or Services.
 
Cenveo reserves the right to modify or discontinue any Modules or Services (in whole or in part) at any time.
 
2.7       Changes to These Terms.
 
Cenveo reserves the right to change these Terms at any time by placing a notice on the Cenveo website, by sending You an email, and/or by some other means. You may reject the new terms, but, by rejecting the new terms, You will no longer be able to use Kadena. If You use Kadena in any way after a change to the terms becomes effective, You will be deemed to have accepted and agreed to the new terms. Except for changes as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both You and Cenveo.
 
2.8       Limitations.
 
Cenveo will not be responsible or liable for any failure in Kadena resulting from or attributable to (a) Customer's Systems, (b) network, telecommunications or other service or equipment failures outside of Cenveo's facilities, (c) Customer's or third party's products, services, negligence, acts or omissions, (d) any force majeure or cause beyond Cenveo's reasonable control, (e) scheduled maintenance or (f) unauthorized access, breach of firewalls or other hacking by You or any third parties.
 
2.9       Systems.
 
Customer shall obtain and operate all Systems needed to connect to, access or otherwise use Kadena, and provide all corresponding backup, recovery and maintenance services. Customer shall ensure that all Systems are compatible with Kadena. Customer shall maintain the integrity and security of its Systems (physical, electronic and otherwise).
 
3.         Support and Maintenance
 
3.1       Support.
 
Cenveo will use commercially reasonable efforts to provide Customer with support and maintenance services for Kadena. Customer agrees that Cenveo will have the right to charge, in accordance with its then current policies, for any support services resulting from problems, errors or inquiries relating to Systems or any other network, equipment, service or software not owned, controlled or procured by Cenveo.
 
3.2       Updates.
 
Cenveo shall have no obligation to provide Updates, except that Cenveo will provide Customer with any Update that it makes generally available to its similar customers.
 
4.         Proprietary Rights
 
4.1       Services.
 
Except for Customer Content, Cenveo (and its licensors) own all right, title and interest in and to Kadena and all modifications, enhancements and Updates to Kadena (including all intellectual property and proprietary rights embodied therein) and provide this material to You under a license that is revocable at any time in Cenveo's sole discretion. Cenveo reserves all rights not expressly granted hereunder. Cenveo neither warrants nor represents that your access to and/or use of Kadena will not infringe rights of third parties not affiliated with Cenveo.
 
You may access, copy, download and print the Cenveo Content, provided you do not modify or delete any copyright, trademark or other proprietary notice that appears on the material you access, copy, download or print. Any other use of the Cenveo Content, including but not limited to the modification, distribution, transmission, performance, broadcast, publication, uploading, licensing, reverse engineering, transfer or sale of, or the creation of derivative works from, any material, information, software, products or services obtained from access to or use of Kadena for purposes competitive to Cenveo, is expressly prohibited. You agree to abide by all additional restrictions displayed on the website as it may be updated from time to time. You may not use any information contained on website other than in connection with Kadena. Access to the website is limited to viewing the linked web pages solely for legitimate business purposes and to access Kadena. Any access, or attempt to access, other areas of Cenveo’s computers system or other information contained on such systems for any purposes is strictly prohibited. Any intentional damage to or  intentional interruption of Cenveo’s computer systems, as well as computer resources and/or system service, or carrying on of personal business or illegal activities will be cause for termination of these Terms. You agree to hold Cenveo, its affiliates, their licensors or content providers harmless for damages and losses incurred as a result of misuse of Kadena.
 
You may not use contact information provided on the website for unauthorized purposes, including marketing. You may not use any hardware or software intended to damage or interfere with the proper working of the website or to surreptitiously intercept any system, data or personal information from the website. You agree not to interrupt or attempt to interrupt the operation of the website in any way. Cenveo reserves the right, in its sole discretion, to limit or terminate your access to or use of the website at any time without notice. Termination of your access or use will not waive or affect any other right or relief to which Cenveo may be entitled at law or in equity.
 
4.2       Customer Content.
 
Customer owns all right, title and interest in and to the Customer Content. You will retain ownership of such Customer Content, and you grant Cenveo and its designees a worldwide, non-exclusive, transferable, royalty-free, perpetual irrevocable right and license, with right of sublicense (through multiple tiers), to use, reproduce, distribute (through multiple tiers), create derivative works of and publicly display such Customer Content solely in connection with the production or provision of any product or service You request or to show you how Customer Content would appear in Cenveo products or services. For example, when you place an order for a product, Cenveo will prepare, manipulate (if necessary), and transmit the Customer Content for production, packaging and shipment.
 
Although You retain ownership of Customer Content, any template or layout in which You arrange or organize such Customer Content through tools and features made available through Kadena are not proprietary to You, and the rights to such template or layout will remain with Cenveo.
 
You represent and warrant that You own or otherwise possess all necessary rights with respect to the Customer Content, and that the Customer Content do not and will not infringe, misappropriate, use or disclose without authorization or otherwise violate any copyright, trade secret right or other intellectual property or other property right of any third party, and that the Customer Content are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.
 
You consent to the use of your likeness, and you have obtained the written consent, release, and/or permission of every identifiable individual who appears in Customer Content to use such individual's likeness, for purposes of using and otherwise exploiting the Customer Content in the manner contemplated by these Terms, or, if any such identifiable individual is under the age of eighteen (18), You have obtained such written consent, release and/or permission from such individual's parent or guardian (and you agree to provide to us a copy of any such consents, releases and/or permissions upon our request). If you do submit a submission that contains the likeness of an identifiable individual under the age of eighteen (18), we strongly encourage You not to include any identifying information (such as the individual's name or address) with such Customer Content.
 
You agree that Cenveo may (but is not obligated to) filter any Customer Content (including, without limitation, deleting or replacing expletives or other harmful or offensive language), refuse to use any Customer Content (including, without limitation, suspending processing and shipping of any order relating to any Customer Content) and/or disclose any Customer Content and the circumstances surrounding the use thereof, to any third party in order to provide the applicable products or services, to enforce these Terms or to comply with legal obligations or governmental requests.
 
4.3       Customer Data.
4.3.1 Ownership. As between the parties, Customer shall own all Customer Data. Cenveo shall not disclose to third parties or use any Customer Data except as reasonably necessary to provide Kadena or to comply with any legal, regulatory or similar requirement or investigation. Notwithstanding the foregoing, during the term of these Terms, Cenveo may use Customer’s system usage information to improve the functionality of Kadena and/or offer Kadena Modules and special products to Customer. Customer agrees to create archival copies or backup copies of all Customer Data.
 
4.3.2. Compliance. You must ensure that your use of Kadena and all Your Customer Data complies at all times with these Terms and all applicable local, state, federal and international laws and regulations (“Laws”). Cenveo assumes no responsibility or liability for Your Customer Data, and You shall be solely responsible for Your Customer Data and the consequences of using, disclosing, storing, or transmitting it.
 
4.3.3. Sensitive Data. You will neither submit nor use Kadena to collect: (i) any personally identifiable information, except as necessary for the establishment of your Cenveo account; (ii) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (iii) any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) through (iii), collectively, “Sensitive Data”). You also acknowledge that Cenveo is not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that Kadena Services are not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, Cenveo has no liability under this Agreement for Sensitive Data.
 
5.         Confidentiality
 
5.1       Confidentiality.
 
Except for the specific rights granted by these Terms, the receiving party shall not use or disclose any of the other's Confidential Information without its written consent, and shall use reasonable care to protect the other's Confidential Information, including ensuring that its employees and contractors with access (a) have a need to know for the purposes of these Terms and (b) are bound by obligations of confidentiality at least as protective as those provided herein. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose these Terms without the prior consent of the other party in connection with any financing transaction or due diligence inquiry if the party to whom such information is disclosed is bound by confidentiality obligations substantially similar to those herein and the party disclosing such information is responsible for any breaches of confidentiality by the party to whom such information is disclosed.
 
5.2       Compelled Disclosure.
 
Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any court order, lawful requirement of a governmental agency, or when disclosure is required by operation of law (including disclosures pursuant to any applicable securities laws and regulations); provided that prior to any such disclosure, the receiving party shall use reasonable efforts to (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.
 
5.3       Effect of Termination.
 
Promptly after any termination of these Terms (or at the disclosing party's request at any other time), the receiving party shall permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. If erasure of Confidential Information is not feasible, the receiving party will cease use of the Confidential Information and such Confidential Information shall remain subject to the terms of Section 5.  Notwithstanding the foregoing, Cenveo may retain and use Customer system usage information solely to improve the functionality of Kadena, even after termination of the provision of Services to You.
 
6.         Limited Warranty and Disclaimers
 
6.1       Limited Warranty.
 
Cenveo warrants that it will provide Kadena in a manner consistent with general industry standards reasonably applicable to the provision thereof. Notwithstanding the foregoing, Kadena may be temporarily unavailable, for example, when deemed reasonably necessary or prudent by Cenveo to repair, maintain or upgrade Kadena or for causes beyond Cenveo's reasonable control.
 
6.2       Disclaimers.
 
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, KADENA IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. NEITHER CENVEO, ITS EMPLOYEES, AFFILIATES, AGENTS, CONSULTANTS, THIRD PARTY VENDORS, SERVICE PROVIDERS OR THE LIKE, WARRANT THAT THE SERVICES WILL NOT BE INTERRUPTED OR ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE KADENA MODULES AND HOSTED ENVIRONMENT OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION SERVICES OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH THE KADENA MODULES AND HOSTED ENVIRONMENT.  CENVEO IS NOT LIABLE FOR THE CONTENT OR LOSS OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER OR STORED BY CUSTOMER OR ANY OF CUSTOMER’S AUTHORIZED USERS VIA THE KADENA MODULES AND HOSTED ENVIRONMENT PROVIDED BY CENVEO. CENVEO DOES NOT WARRANT THAT KADENA WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR­FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, CENVEO HEREBY DISCLAIMS (FOR ITSELF AND ITS AFFILIATES, AGENTS, CONSULTANTS, THIRD PARTY VENDORS, SERVICE PROVIDERS OR THE LIKE) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO KADENA INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON­INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR OR SPECIFIC PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
 
7.         Indemnity
 
7.1       General
You agree to indemnify and hold Cenveo, its directors, officers, shareholders, employees, contractors, agents, representatives, affiliates, and third party users harmless from and against any and all third party claims, causes of action, liabilities, damages, losses, expenses and costs (including, without limitation, attorneys' fees) that arise directly or indirectly out of or from: (i) your violation of these Terms, any other agreement with Cenveo, any representation or warranty contained herein or therein or any applicable law; (ii) your Customer Content; (iii) your activities in connection with obtaining any products or services from us, or (iv) any activity related to access to or use of your account by You or any other person.
 
7.2       Infringement
Subject to the provisions of this Section, Customer and Cenveo each agree to defend the other against any third party action to the extent that such action is based on a claim that Customer Data or the Customer Content, in the case of Customer, and the Services, the Deliverables, Content (not mandated by Customer), in the case of Cenveo, or the Confidential Information provided by or on behalf of the other Party (each an “Indemnified Item”), (i) infringes a copyright under United States or other applicable law, (ii) infringes a patent granted under United States or other applicable laws, or (iii) constitutes an unlawful disclosure, use or misappropriation of another party's proprietary rights or trade secret.  The indemnitor will bear the expense of such defense and pay any damages and reasonable attorneys' fees that are attributable to such claim and finally awarded by a court of competent jurisdiction.
 
If an Indemnified Item becomes the subject of a claim under this Section, or in the indemnitor's opinion is likely to become the subject of such a claim, then the indemnitor may, at its option, (i) modify the Indemnified Item to make it non-infringing or cure any claimed misuse of another's trade secret, provided such modification does not adversely affect the functionality of the Indemnified Item, (ii) procure for the indemnitee the right to continue using the Indemnified Item pursuant to these Terms, or (iii) replace the Indemnified Item with an Indemnified Item that is substantially equivalent and that is non-infringing or that is free of claimed misuse of another's trade secret.  Any costs associated with implementing any of the above alternatives will be borne by the indemnitor.  If none of the foregoing courses of action is practical, the allegedly infringing Indemnified Item will be withdrawn, and the scope and charges will be equitably adjusted to reflect such withdrawal.
 
With respect to any software provided or developed by a Party pursuant to these Terms, such Party will have no liability to the other Party under this Section,  (i) to the extent that any claim of infringement is based upon the use of the software in connection or in combination with equipment, devices or software not supplied by that Party or use of the software in a manner for which the software was not designed, (ii) for infringements that arise solely as a result of the implementation by that Party of functionality requirements presented by the other Party where there is no non-infringing alternative to such implementation, and the other Party has been so advised by that Party prior to implementation, and (iii) for fixes, updates, modifications, enhancements and improvements to the software made by any Party other than that Party or its subcontractors (unless directed to do so by the other Party, and there was no non-infringing alternative to accomplish such modification, enhancement or improvement).
 
7.2       Procedure for Indemnification.
If any third party claim is commenced against a Party entitled to indemnification under this Article, the indemnitee will provide notice of the claim and copies of all related documentation to the indemnitor.  Such notice and documentation will be provided as promptly as possible.  The indemnitee will cooperate, at the cost of the indemnitor, in all reasonable respects with the indemnitor and its attorneys in the investigation, trial and defense of such claim and any appeal.  The indemnitee may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal.  In such case, the indemnitor will cooperate with the indemnitee's attorneys.
 
7.3       Settlement.
 
An indemnitor will have no liability with respect to any settlement reached without its prior written consent.  Settlements of indemnified claims will be subject to the indemnitee's approval, which will not be unreasonably withheld or delayed; provided, however, that such consent may be given or withheld in the indemnitee's sole discretion to the extent the settlement admits liability, stipulates to any declaratory or equitable remedy (including monetary), or affects the indemnitee's intellectual property or Confidential Information.
 
8.         Limitation of Liability
 
8.1       Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY AGREED BY THE PARTIES IN AN EXISTING OR FUTURE AGREEMENT, PURCHASE ORDER OR ANY  STATEMENT OF WORK, IN CONNECTION WITH KADENA AND CUSTOMER’S USE THEREOF, EXCEPT FOR  AMOUNTS OWED TO THIRD PARTIES PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN OR ANY BREACHES OF SECTION 2.5 (PROHIBITED USES), IN NO EVENT SHALL EITHER PARTY (OR IN THE CASE OF CENVEO, ITS EMPLOYEES, AFFILIATES, AGENTS, CONSULTANTS, THIRD PARTY VENDORS, SERVICE PROVIDERS OR THE LIKE) BE LIABLE CONCERNING THE SUBJECT MATTER OF THESE TERMS, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANY NETWORK OR SYSTEM), (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO CENVEO HEREUNDER WITH RESPECT TO KADENA THAT GAVE RISE TO THE CLAIM DURING THE TWELVE­MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THESE TERMS AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
 
9.         Term and Termination
 
9.1       Term.
 
These Terms shall commence on the date that these Terms are accepted (or deemed accepted by Customer’s use of Kadena) and shall continue in effect unless terminated earlier as permitted in Section 9.2.
 
9.2       Termination.
 
These Terms may be earlier terminated by either party, in whole or in part, (a) if the other party materially breaches a provision of these Terms and fails to cure such breach within 30 days (5 days in the case of non­payment) after receiving written notice of such breach from the non­breaching party, or  (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course. In addition to the foregoing, either party may terminate these Terms by giving the other party at least 90 days prior written notice.
 
9.3       Effects of Termination.
 
Upon any expiration or termination of these Terms, all rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) and remedies for breach of these Terms shall survive, (b) Cenveo may, but shall not be obligated to, delete archived Customer Data and (c) the provisions of Sections 4 (Proprietary Rights), 5 (Confidentiality), 6.2 (Disclaimers), 8 (Limitation of Liability), 10 (General Provisions) and this Section 9.3 (Effects of Termination) shall survive.
 
10.       General Provisions
 
10.1     Entire Agreement.
 
These Terms, together with Cenveo’s Privacy Policy, and any applicable Statements of Work, constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties concerning Kadena and the use thereof. No waiver, consent or, except as expressly provided herein, modification of these Terms shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under these Terms at any time for any period will not be construed as a waiver of such rights. If any provision of these Terms is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. If these Terms are required to be registered with any governmental authority, Customer shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.
 
10.2     Governing Law.
 
These Terms shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any enactment of the Uniform Computer Information Transactions Act shall apply to these Terms. The sole jurisdiction and venue for actions related to these Terms will be the state or federal courts located in New York, New York, and both parties consent to the jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce or interpret these Terms, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
 
10.3     Remedies.
 
Except as specifically provided otherwise, each right and remedy in these Terms is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5, the non­breaching party may suffer irreparable damage for which it may have no adequate remedy at law. Accordingly, the non­breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
 
10.4     Notices.
 
Any notice or communication hereunder shall be in writing and either personally delivered or sent recognized express delivery courier or certified or registered mail, prepaid and return receipt requested, addressed to the other party at its address specified in the service agreement, purchase order or Statement of Work, or at such other address designated in a subsequent notice. All notices shall be in English, effective upon receipt.
 
10.5     Assignment.
 
You may not assign these Terms and the rights and obligations hereunder, in whole or in part, without Cenveo’s written consent  Any attempted transfer in violation hereof will be void and of no effect. These Terms shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
 
10.6     Independent Contractors.
 
The parties shall be independent contractors under these Terms, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
 
10.7     Publicity.
 
Neither party will make public announcements or issue press releases relating to these Terms without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
 
Last updated: October 29, 2018