COSOSYS LIMITED AND/OR ITS AFFILIATES ("COSOSYS") IS WILLING TO LICENSE THE
COSOSYS SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY
THAT WILL BE UTILIZING THE COSOSYS SOFTWARE (REFERENCED BELOW AS "YOU" OR
"YOUR") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS END USER
LICENSE AGREEMENT ("LICENSE AGREEMENT"). READ THE TERMS AND CONDITIONS OF THIS
LICENSE AGREEMENT CAREFULLY BEFORE USING THE COSOSYS SOFTWARE. THIS IS A LEGAL
AND ENFORCEABLE CONTRACT BETWEEN YOU AND COSOSYS. BY OPENING THE COSOSYS
SOFTWARE PACKAGE, BREAKING THE COSOSYS SOFTWARE SEAL, CLICKING THE "I AGREE" OR
"YES" BUTTON, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR LOADING THE
COSOSYS SOFTWARE OR OTHERWISE USING THE COSOSYS SOFTWARE, OR USING THE COSOSYS
SOFTWARE AS AN AUTHORIZED REPRESENTATIVE OF THE COMPANY NAMED ON THE APPLICABLE
ORDER FORM ON WHOSE BEHALF YOU INSTALL AND/OR USE THE COSOSYS SOFTWARE, YOU
AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT
AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK THE "I ACCEPT" BUTTON AND
MAKE NO FURTHER USE OF THE COSOSYS SOFTWARE. UNLESS OTHERWISE DEFINED HEREIN,
CAPITALIZED TERMS WILL HAVE THE MEANING GIVEN IN THE "DEFINITIONS" SECTION OF
THIS LICENSE AGREEMENT AND SUCH CAPITALIZED TERMS MAY BE USED IN THE SINGULAR
OR IN THE PLURAL, AS THE CONTEXT REQUIRES.
1. DEFINITIONS.
"Affiliates" means, with respect to a party at a given time, an entity that
then is directly or indirectly controlled by, is under common control with, or
controls that party, and here "control" means an ownership, voting or similar
interest representing fifty percent (50%) or more of the total interests then
outstanding of that entity.
"Authorized users" means Your employees or contractors who are authorized to
use the CoSoSys Software, solely for Your internal business purposes, subject
to the applicable Use Levels and otherwise in compliance with this Agreement.
"Content Updates" means content used by certain CoSoSys products which is
updated from time to time, including but not limited to: updated intrusion
detection data for intrusion detection products; updated policy compliance
rules for policy compliance products.
"CoSoSys Software" means the Licensed Software and the Legacy Licensed Software.
"Documentation" means the user documentation CoSoSys provides with the CoSoSys
Software, and any modified updated, or enhanced versions of such Documentation.
"Effective Date" means the start date of the Subscription Term as specified in
the applicable Order Form and License Instrument.
"Intellectual Property Rights" means current and future worldwide rights under
patent law, copyright law, trade secret law, trademark law, moral rights law,
and other similar rights.
"Legacy Licensed Software" means a CoSoSys license accompanying this License
Agreement that is not, as of the date of this Agreement, licensed, marketed or
sold by CoSoSys to new customers but are in the use of certain existing
customers.
"License Instrument" means one or more of the following applicable documents
which further defines Your license rights to the CoSoSys Software: a Support
Certificate in case of a Legacy Licensed Software, and/or a written agreement
between You and CoSoSys, that accompanies, precedes or follows this License
Agreement, and/or an Order form.
"Licensed Software" means the CoSoSys software product that is not a Legacy
Licensed Software, in object code form, accompanying this License Agreement,
including any Documentation included in, or provided for use with, such
software or that accompanies this License Agreement.
"Order Form" means an order form entered into between You and CoSoSys for Your
purchase of the CoSoSys Software.
"Subscription" means a subscription license to access and use the Licensed
Software and to receive Support during the applicable Subscription Term.
"Subscription Fees" has the meaning given to such term in Section 3.1.
"Subscription Term" means the subscription term for Customer’s access and use
of CoSoSys’ products set forth in the applicable Order form.
"Support Certificate" means the certificate sent by CoSoSys confirming Your
purchase of the applicable CoSoSys maintenance/support for the Legacy Licensed
Software.
"Support" means CoSoSys’ standard Support services and has the meaning given
to such term in Section 10.
"Upgrade" means any version of the CoSoSys Software that has been released to
the public and which replaces the prior version of the CoSoSys Software on
CoSoSys’ price list pursuant to CoSoSys’ then-current upgrade policies.
"Use Level" means the license use meter or model (which may include operating
system, hardware system, application or machine tier limitations, if
applicable) by which CoSoSys measures, prices and licenses the right to use the
CoSoSys Software, in effect at the time an order is placed for such CoSoSys
Software, as indicated in the applicable License Instrument.
2. COSOSYS SOFTWARE.
2.1 LICENSE GRANT.
Subject to Your compliance with the terms and conditions of this License
Agreement, including payment of all applicable fees, CoSoSys grants to You the
following rights: (i) a non-sublicensable, non-exclusive, non-transferable
(except as stated otherwise in Section 16.1), limited license, solely during
the Subscription Term or Trial Period (defined below), as applicable, to
install, execute and use, and permit End Users to install, execute and use the
CoSoSys Software solely in support of Your internal business operations in the
quantities and at the Use Levels described in and the applicable License
Instrument and only in accordance with the Documentation; and (ii) the right to
make a single uninstalled copy of the CoSoSys Software for archival purposes
which You may use and install for disaster-recovery purposes (i.e. where the
primary installation of the CoSoSys Software becomes unavailable for use).
2.2 TERM.
Subject to termination as set forth in Section 14 (Termination) of this
Agreement, the term of this Agreement will commence on the Effective Date and
will continue for as long as the Licensed Software is being provided to You
under the Order Form and this Agreement, or, in case of the Legacy Licensed
Software, until You cease using the corresponding CoSoSys product. The term of
the Licensed Software and the corresponding periodic Subscription Fees set
forth in an Order Form shall automatically renew for successive terms equal in
duration to the initial Subscription Term unless either party notifies the
other party in writing, not less than sixty (60) calendar days before the
expiration of the then-current Subscription Term, that such party does not wish
to renew the license for an additional Subscription Term. The renewal of the
Legacy Licensed Software will be separately negotiated at the expiration of the
corresponding support and updates period. For avoidance of any doubt, CoSoSys
may change its fees and payment terms at any time in its sole discretion
provided that such changes will not take effect for You until the start of the
next Subscription Term (as specified in the applicable Order Form). CoSoSys
will provide written notice in advance to You of any changes to the fees that
may affect the Subscription purchased by You. Except as expressly provided in
the applicable Invoice, Contract or Order Form, renewal of promotional or
one-time priced subscriptions will be priced at the applicable list price in
effect at the time of the applicable renewal.
2.3 INTELLECTUAL PROPERTY RIGHTS.
CoSoSys or its licensors retain all right, title and interest in and to the
CoSoSys Software and related Documentation and materials (and any and all
copies thereof) including, without limitation, any and all Intellectual
Property Rights thereto. Title to the CoSoSys Software shall not pass from
CoSoSys to You, and the CoSoSys Software and all copies thereof shall at all
times remain the sole and exclusive property of CoSoSys.
2.4. LICENSE RESTRICTIONS.
You may not (and you will not allow any third party), conduct, cause or permit
the: (i) use, copying, distribution, modification, assigning, rental, lease,
sublease, sublicense, or transfer of the CoSoSys Software except as expressly
provided in this License Agreement; (ii) creation of any derivative works based
on the CoSoSys Software; (iii) reverse engineering, disassembly, or decompiling
of the CoSoSys Software (except that You may decompile the CoSoSys Software for
the purposes of interoperability only to the extent permitted by and subject to
strict compliance under applicable law. In such event You must first request
such code from CoSoSys in writing in advance) or otherwise attempt to derive
the structure of the CoSoSys Software or the source code from the CoSoSys
Software; (iv) use of the CoSoSys Software in connection with service bureau,
facility management, timeshare, service provider or like activity whereby You
operate or use the CoSoSys Software for the benefit of a third party; (v) use
of the CoSoSys Software by any party other than You; (vi) use of a later
version of the CoSoSys Software other than the version that accompanies this
License Agreement unless You have separately acquired the right to use such
later version through a License Instrument; nor (vii) use of the CoSoSys
Software above the quantity and Use Level that have been licensed to You under
the applicable License Instrument and Order Form; (viii) use or access the
CoSoSys Software in order to build a similar or competitive product or service
or disclose to any third party any benchmarking or comparative study involving
any CoSoSys product; (ix) remove or alter in any way any proprietary rights
notices in the CoSoSys Software or Documentation; (x) violation of any
applicable laws or regulations. You acknowledge that the CoSoSys Software may
include features that prevent the use of the Licensed Software after the
expiration of the Subscription term and/or if Your use of the CoSoSys Software
is inconsistent with this Agreement. You agree that you shall not permit any
person other than End Users to access and use the CoSoSys Software, and shall
ensure that End Users use the CoSoSys Software solely in accordance with this
Agreement, the Documentation and the applicable Use Levels. You acknowledge
and agree that any breach of this Agreement by any End User will be deemed a
breach by You.
3. PAYMENT AND FEES
3.1 FEES.
a.) The fees and payment terms payable by You to CoSoSys for the Licensed
Software will be set forth in each Order Form ("Subscription Fees"). At any
time of the Subscription Term, You may submit an Order Form to increase the Use
Levels and, upon CoSoSys’ acceptance of such Order Form, You shall pay the
Subscription Fees for such increase, pro-rated for the remainder of Your
then-current Subscription Term, and such Order Form shall renew concurrently
with Your then-current Subscription for a period equal to Your initial
Subscription Term.
b.) The fees and payment terms payable by You to CoSoSys for the renewal of the
Legacy Licensed Software will be set forth in each Order Form.
3.2 TAX.
(i) Unless otherwise agreed between the Parties, all CoSoSys prices are net,
excluding VAT or any applicable sales tax. You must pay or reimburse CoSoSys
for all Taxes arising out of the transactions contemplated by the Agreement.
Here "Taxes" means any sales, VAT (value-added tax), GST (goods and services
tax), use, gross receipts, business and occupation, and other taxes (other than
taxes on our income), export and import fees, customs duties, and similar
charges imposed by any government or other authority. If You are required to
pay or withhold any Taxes for payments due under the Agreement, You must gross
up your payments so that CoSoSys receives all sums due in full and free of any
deductions. If You are required to pay any Taxes to a taxing authority, You
agree to provide documentation to CoSoSys upon CoSoSys’ request showing that
You paid those Taxes. In such case, You and CoSoSys will work together to
avoid any withholding tax if exemptions, or a reduced treaty withholding rate,
are available. If CoSoSys qualifies for a tax exemption, or a reduced treaty
withholding rate, CoSoSys will provide You with reasonable documentary proof.
You will provide CoSoSys reasonable evidence that You paid the relevant
authority for the sum withheld or deducted.
3.3 CHANGES TO FEES.
CoSoSys may change its fees and payment terms at its discretion, provided
however, that such changes will not take effect for You until the start of the
next Subscription Term (as specified in the applicable Order Form) or until the
next renewal of the Legacy Licensed Software. CoSoSys will provide written
notice in advance to You of any changes to the fees that may affect the
Subscription purchased by You.
4. OWNERSHIP/TITLE.
4.1. The CoSoSys Software is the proprietary property of CoSoSys or its
licensors and is protected by copyright law. CoSoSys and its licensors retain
any and all rights, title and interest in and to the CoSoSys Software,
including in all copies, improvements, enhancements, modifications and
derivative works of the CoSoSys Software. Title to the CoSoSys Software will
not pass from CoSoSys to You, and the CoSoSys Software and all copies thereof
will at all times remain the sole and exclusive property of CoSoSys. Your
rights to use the CoSoSys Software shall be limited to those expressly granted
in this License Agreement. All rights not expressly granted to You are retained
by CoSoSys and/or its licensors.
4.2. To the extent You or any End User provides suggestions or feedback to
CoSoSys regarding the functioning, features, and other characteristics of the
CoSoSys Software, Documentation, or other materials or services provided or
made available by CoSoSys ("Feedback"), You hereby grant CoSoSys a perpetual,
irrevocable, non-exclusive, royalty-free, fully-paid, fully-transferable,
worldwide license (with rights to sublicense through multiple tiers of
sublicensees) under all of Your Intellectual Property Rights, for CoSoSys to
use and exploit such Feedback in any manner and for any purpose.
5. CONTENT UPDATES.
5.1 In case of the Licensed Software, You are granted the right to use, as part
of the Licensed Software, such Content Updates as and when they are made
generally available to CoSoSys’ end user customers using the Licensed
Software.
5.2 In case of the Legacy Licensed Software, if You purchase a CoSoSys
maintenance/support offering consisting of or including Content Updates, as
indicated on Your Support Certificate, You are granted the right to use, as
part of the Legacy Licensed Software, such Content Updates as and when they are
made generally available to CoSoSys’ end user customers using Legacy Licensed
Software who have purchased such maintenance/support offering and for such
period of time as indicated on the face of the applicable Support Certificate.
This License Agreement does not otherwise permit You to obtain and use Content
Updates.
6. UPGRADES/CROSS-GRADES.
CoSoSys reserves the right to require that any upgrades (if any) of the CoSoSys
Software may only be obtained in a quantity equal to the number indicated on
the applicable License Instrument. An upgrade to an existing license shall not
be deemed to increase the number of licenses which You are authorized to use.
Additionally, if You upgrade a CoSoSys Software license, or purchase a CoSoSys
Software license listed on the applicable License Instrument to cross-grade an
existing license (i.e. to switch to a new license type, to increase its
functionality, and/or transfer it to a new operating system, hardware tier or
licensing meter), then CoSoSys issues the applicable Licensed Instrument based
on the understanding that You agree to cease using the original license. Any
such license upgrade or cross-grade is provided under CoSoSys policies in
effect at the time of order. This License Agreement does not separately license
You for additional licenses beyond those which You have purchased, and which
have been authorized by CoSoSys as indicated on the applicable License
Instrument.
7. LIMITED WARRANTY.
7.1. HARDWARE WARRANTY.
If CoSoSys provides the CoSoSys Software to You on a hardware server, CoSoSys
warrants that the hardware server on which the CoSoSys Software is recorded
will not be defective under normal use, for a period of ninety (90) days from
delivery. CoSoSys will replace any defective hardware server returned to
CoSoSys within the warranty period at no charge to You. The above warranty is
inapplicable in the event the CoSoSys Software hardware server becomes
defective due to unauthorized use of the CoSoSys Software. THE FOREGOING IS
YOUR SOLE AND EXCLUSIVE REMEDY FOR COSOSYS’S BREACH OF THIS WARRANTY.
7.2. PERFORMANCE WARRANTY.
CoSoSys warrants that the CoSoSys Software, as delivered by CoSoSys and when
used for its intended purpose and in accordance with CoSoSys' instructions, the
CoSoSys Software will perform substantially in conformance with the
Documentation for a period of ninety (90) days from delivery. If the CoSoSys
Software does not comply with this warranty and such non-compliance is reported
by You to CoSoSys within the ninety (90) day warranty period, CoSoSys will do
one of the following, selected at CoSoSys’ reasonable discretion: either (i)
repair the CoSoSys Software, (ii) replace the CoSoSys Software with software of
substantially the same functionality, or (iii) terminate this License Agreement
and refund the relevant license fees paid for such non-compliant CoSoSys
Software. The above warranty specifically excludes defects resulting from
accident, abuse, unauthorized repair, modifications or enhancements, or
misapplication. This warranty will not apply: (a) if the CoSoSys Software is
used other than in accordance with the Documentation, or in combination with
materials not furnished by CoSoSys; (b) if the non-conformity was caused by
misuse, use for an unintended purpose, unauthorized modifications or
third-party products, software, services or equipment; or (c) is used in breach
of this Agreement. THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR
COSOSYS’S BREACH OF THIS WARRANTY.
8. WARRANTY DISCLAIMERS.
OTHER THAN THE LIMITED WARRANTY IN SECTION 7.1 and 7.2 ABOVE, AND TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COSOSYS AND ITS SUPPLIERS AND
LICENSORS MAKE NO OTHER WARRANTIES OF ANY KIND UNDER THIS AGREEMENT AND
EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT,
AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR
PERFORMANCE, OR USAGE OF TRADE. COSOSYS AND ITS SUPPLIERS AND LICENSORS DO NOT
WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED, BE FREE FROM DEFECTS, OR
MEET YOUR REQUIREMENTS.
9. INDEMNIFICATION. LIMITATION OF LIABILITY.
9.1 INDEMNIFICATION
a.) By You. You will indemnify, defend, and hold harmless CoSoSys from
and against all liabilities, damages, and costs (including settlement costs and
reasonable attorneys’ fees) arising out of a third-party claim: (i) regarding
Your data; (ii) that your use infringes or misappropriates any patent,
copyright, trade secret or trademark of a third party; or (iii) regarding Your,
or your end users’, use of the CoSoSys Software in violation of this
Agreement.
b.) By CoSoSys. CoSoSys will indemnify, defend, and hold You harmless
from and against all liabilities, damages, and costs (including settlement
costs and reasonable attorneys’ fees) as a result of any final judgment or
adjudication against You which provides that the CoSoSys Software appropriately
used by You infringes or misappropriates any patent, copyright, trade secret or
trademark of a third party, provided that You promptly notify CoSoSys of any
and all threats, claims, and proceedings related thereto and give reasonable
assistance. In such event, CoSoSys reserves the exclusive right to control and
direct the investigation of such claim, defense, and settlement, if applicable,
of the claim. You may participate and retain Your own counsel at Your own
expense. The foregoing obligations do not apply to the extent arising from: (i)
the CoSoSys Software or portions or components thereof (a) not created by
CoSoSys; (b) that are modified after delivery by CoSoSys; and/or (c) combined
with other products, processes, or materials where the alleged infringement
relates to such combination; (ii) Your Environment; (iii) Your continued
allegedly infringing activity after being notified thereof or after being
informed of modifications that would have avoided the alleged infringement;
(iv) Your use of the CoSoSys Software is not strictly in accordance with the
Agreement and/or the Documentation; (v) You settle or attempt to settle any
claim without Licensor’s involvement and prior written consent or (v) a Trial
Version.
c.) In the event of a claim, or if CoSoSys believes a claim is likely, CoSoSys
will (at its option and discretion) either:
i.) procure the right to continue using the CoSoSys Software, or modify
the CoSoSys Software so as to avoid the infringement; or
ii.) refund the relevant pro-rata license fees paid for such CoSoSys Software.
The foregoing shall be Your sole and exclusive remedy and CoSoSys’ sole and
exclusive obligation with respect to any claim of intellectual property
infringement.
9.2 LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY
REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL
COSOSYS OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE TO YOU FOR
(i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES,
LOSS OF PROFITS, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF OR
CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF
REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED
MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR
INDIRECT DAMAGES WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT
LIABILITY, OR OTHERWISE, EVEN IF COSOSYS OR ITS LICENSORS, RESELLERS, SUPPLIERS
OR AGENTS HAS BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. COSOSYS’ AND ITS
LICENSORS’ LIABILITY IN THE AGGREGATE UNDER THIS AGREEMENT WILL NOT, IN ANY
EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT
LIABILITY, OR OTHERWISE, EXCEED THE GREATER OF THE FEES YOU PAID IN THE PAST
TWELVE (12) MONTHS FOR THE COSOSYS SOFTWARE GIVING RISE TO THE CLAIM. NOTHING
IN THIS AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT COSOSYS’S LIABILITY
TO YOU FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR FOR ANY OTHER
LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. THE DISCLAIMERS AND
LIMITATIONS SET FORTH ABOVE WILL APPLY REGARDLESS OF WHETHER OR NOT YOU ACCEPT
THE COSOSYS SOFTWARE, CONTENT UPDATES OR UPGRADES. YOU MAY NOT BRING A CLAIM
UNDER THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION
ARISES.
10. MAINTENANCE/SUPPORT.
10.1 In case of the Licensed Software, during the applicable Subscription Term
set forth in the License Instrument, and subject to Your payment of the
applicable Subscription Fees, CoSoSys will use commercially reasonable efforts
to provide You standard technical and operational support and maintenance
services during CoSoSys’ normal business hours, in accordance with CoSoSys’
then-current Maintenance and Support Policy.
10.2 In case of the Legacy Licensed Software, CoSoSys has no obligation under
this License Agreement to provide maintenance/support for the Legacy Licensed
Software. Any maintenance/support purchased for the Legacy Licensed Software is
subject to CoSoSys’ then-current maintenance/support policies.
11. SOFTWARE EVALUATION.
If the CoSoSys Software is provided to You for evaluation purposes (the "Trial
Version") and You have an evaluation agreement with CoSoSys for the CoSoSys
Software, Your rights to evaluate the CoSoSys Software will be pursuant to the
terms of such evaluation agreement. If You do not have an evaluation agreement
with CoSoSys for the
CoSoSys Software and if You are provided the CoSoSys Software for evaluation
purposes, the following terms and conditions shall apply. CoSoSys grants to You
a nonexclusive, temporary, royalty-free, non-assignable license to use the
CoSoSys Software solely for internal non-production evaluation, and subject to
any and all technical limitations implemented by CoSoSys in the Trial Version.
Such evaluation license shall terminate (i) on the end date of the
pre-determined evaluation period, if an evaluation period is pre-determined in
the CoSoSys Software or (ii) thirty (30) days from the date of Your initial
installation of the CoSoSys Software, if no such evaluation period is
pre-determined in the CoSoSys Software ("Evaluation Period"), in each case this
Agreement will automatically terminate (without the requirement of providing
any termination notice). The CoSoSys Software may not be transferred and is
provided "AS IS" without warranty of any kind or any support or other services
(including any updates or upgrades). You are solely responsible to take
appropriate measures to back up Your system and take other measures to prevent
any loss of files or data. The CoSoSys Software may contain an automatic
disabling mechanism that prevents its use after a certain period of time. Upon
expiration of the CoSoSys Software Evaluation Period, You will cease use of the
CoSoSys Software and destroy all copies of the CoSoSys Software. In addition to
the restrictions set forth in Section 2.4, You will not attempt to circumvent,
dismantle, or otherwise interfere with any time-control disabling functionality
in the Trial Version that causes the Trial Version to cease functioning upon
the expiration of the Trial Period.
12. U.S. GOVERNMENT RESTRICTED RIGHTS.
For purposes of sales to government entities in the United States, the CoSoSys
Software and the accompanying Documentation are deemed to be "commercial
computer software" and "commercial computer software documentation",
respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as
applicable. Any use, modification, reproduction, release, performing,
displaying, or disclosure of the CoSoSys Software or the accompanying
Documentation by or for the U.S. Government will be governed solely by the
terms and conditions of the Agreement, in conjunction with statutes,
regulations, and the terms of the GSA Schedule.
13. EXPORT REGULATION.
You hereby agree that You will use, disclose and/or transport the CoSoSys
Software in accordance with any applicable export control laws and regulations
and that You are solely responsible for fulfilling any applicable governmental
requirements in connection with Your use, disclosure and/or transport of the
CoSoSys Software and relating to any transfer. You agree to indemnify and hold
CoSoSys harmless from and against any claim, loss, liability or damage suffered
or incurred by CoSoSys resulting from or related to Your violation of this
paragraph. You hereby agree that You will not export, use or sell the CoSoSys
Software in connection with chemical, biological, or nuclear weapons, or
missiles, drones or space launch vehicles capable of delivering such weapons or
otherwise for any military purposes.
14. TERMINATION.
14.1 These Terms are effective as of the Effective Date and will continue for
as long as the CoSoSys Software is being provided to You under this Agreement.
Either party may terminate this Agreement immediately without further notice if
the other party breaches its obligations under this Agreement and does not
remedy such breach within thirty (30) calendar days of the date on which the
breaching party receives written notice of such breach from the non-breaching
party. Additionally, either party may terminate this Agreement and any or all
Order Forms without liability to the other party if the other enters into
compulsory or voluntary liquidation, ceases for any reason to carry on
business, or takes or suffers any similar action that the other party
reasonably believes will materially impair its performance under the Agreement
(including payment of fees) and such proceedings and/or actions are not
dismissed or resolved in ninety (90) days.
14.2 Effects of Termination. Upon the termination of this Agreement for any
reason: (i) the licenses and rights granted to You under this Agreement in
respect of the CoSoSys Software will terminate, and You and your End Users will
immediately cease use of the CoSoSys Software; (ii) CoSoSys’ obligations to
provide Support will immediately terminate; (iii) You will pay to CoSoSys the
full amount of any outstanding fees due hereunder. In no event will termination
relieve You of your obligation to pay any fees payable to CoSoSys under an
Order Form, invoice or similar ordering document. To the maximum extent
permitted by law, all Fees paid or payable are non-refundable. YOU ACKNOWLEDGE
AND AGREE THAT THE COSOSYS SOFTWARE MAY CONTAIN DISABLING CODE THAT (EITHER
AUTOMATICALLY OR AT COSOSYS’ CONTROL) WILL RENDER THE COSOSYS SOFTWARE (AND
RELATED DATA) UNUSABLE UPON TERMINATION OR YOUR BREACH OF THIS AGREEMENT. All
logs and reports will still be accessible after termination.
15. SURVIVAL.
The following provisions of this License Agreement survive termination of this
License Agreement: Definitions, License Restrictions and any other restrictions
on use of intellectual property, Ownership/Title, Warranty Disclaimers,
Limitation of Liability, U.S. Government Restricted Rights, Effects of
Termination, European Union Restricted Rights, Export Regulation, Survival,
General or any other clause(s) which by their nature are intended to continue
beyond the termination or expiration of this Agreement.
16. GENERAL.
16.1. ASSIGNMENT.
You may not assign the rights granted hereunder or this License Agreement, in
whole or in part and whether by operation of contract, law or otherwise,
without CoSoSys’ prior express written consent, except that You may, without
such consent, assign or transfer this Agreement, in whole, pursuant to a
transfer of all or substantially all of Your business and assets, whether by
merger, sale of assets, sale of stock, or otherwise. CoSoSys may freely assign
or transfer this Agreement hereunder without Your consent, provided that it
agrees to give notice of any such assignment where feasible. The provisions
hereof are for the benefit of the parties only and not for any other person or
entity.
16.2. COMPLIANCE WITH APPLICABLE LAW.
You are solely responsible for Your compliance with, and You agree to comply
with, all applicable laws, rules, and regulations in connection with Your use
of the CoSoSys Software.
16.3. GOVERNING LAW; SEVERABILITY; WAIVER.
This License Agreement will be governed by the English Law. Such governing laws
are exclusive of any provisions of the United Nations Convention on the
International Sale of Goods or the Uniform Computer Information Transactions
Act, including any amendments thereto, and without regard to principles of
conflicts of law. If any provision of this License Agreement is found partly or
wholly illegal or unenforceable, such provision shall be enforced to the
maximum extent permissible, and remaining provisions of this License Agreement
shall remain in full force and effect. No failure or delay in exercising any
right hereunder will operate as a waiver thereof, nor will any partial exercise
of any right or power hereunder preclude further exercise. A waiver of any
breach or default under this License Agreement shall not constitute a waiver of
any other subsequent breach or default.
16.4. THIRD PARTY PROGRAMS.
The CoSoSys Software may incorporate and consist of third-party software
programs ("Open Source Software") which You may use under the terms and
conditions of the specific license under which the Open Source software is
distributed, which are available here, and such Open Source Software is not
licensed to You under the terms of this Agreement. Title to Open Source
Software remains with the applicable licensor(s). Any Open Source Software
provided with or contained in the Product is provided "AS IS" and without any
warranty of any kind. This License Agreement does not alter any rights or
obligations You may have under those open source or free software licenses.
Notwithstanding anything to the contrary contained in such licenses, the
disclaimer of warranties and the limitation of liability provisions in this
License Agreement shall apply to such Open Source Software.
16.5. CUSTOMER SERVICE.
Should You have any questions concerning this License Agreement, or if You
desire to contact CoSoSys for any reason, please write to: (i) CoSoSys SRL,
str. Somesului 14, 400145 Cluj-Napoca, Romania and/or (ii) to legal@cososys.com.
16.6. NOTICES.
Any notice, report, approval, authorization, agreement, or consent required or
permitted hereunder will be in writing; notices will be sent to the address
that the applicable party has or may provide by written notice or, if there is
no such address, the most recent address the party giving notice can locate
using reasonable efforts.
16.7. ENTIRE AGREEMENT.
This License Agreement and any related License Instrument are the complete and
exclusive agreement between You and CoSoSys relating to the CoSoSys Software
and supersedes and cancels any previous or contemporaneous oral or written
communications, proposals, and representations with respect to its subject
matter. This License Agreement prevails over any conflicting or additional
terms of any purchase order, ordering document, acknowledgement or confirmation
or other document issued by You, even if signed and returned. This License
Agreement may only be modified by a License Instrument that accompanies or
follows this License Agreement. If any term of this Agreement shall to any
extent be declared invalid or unenforceable, such term or provision shall be
enforced to the maximum extent permissible to effect the intent of the parties,
and the remainder of this Agreement shall not be affected hereby, and each term
and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by the law. CoSoSys may amend the terms and conditions of
this License Agreement at any time by notice to You. Such amended terms and
conditions shall be binding upon You with effect from the date of such change.
For the avoidance of doubt, such amended terms and conditions shall supersede
any prior version of the License Agreement that may have been embedded in the
CoSoSys Software itself. If You and CoSoSys have signed a separate written
agreement covering the licensing and use of the CoSoSys Software, the terms and
conditions of such signed agreement shall take precedence over any conflicting
terms and conditions of this License Agreement.
17. ADDITIONAL TERMS AND CONDITIONS.
Your use of the CoSoSys Software is subject to the terms and conditions below
in addition to those stated above.
17.1. You may use the CoSoSys Software for the number of licensed User(s) and
at the Use Levels as have been licensed to You by CoSoSys herein and as
indicated in the applicable License Instrument. Your License Instrument shall
constitute proof of Your right to make and use such copies. For purposes of
this License Agreement,
"User(s)" means an individual person and/or device authorized by You to use
and/or benefits from the use of the CoSoSys Software, or is the person and/or
device who actually uses any portion of the CoSoSys Software.
17.2. Notwithstanding anything to the contrary contained in this License
Agreement, each running instance (physical and/or virtual) of such CoSoSys
Software must be licensed. You create an "instance" of software by executing
the software’s setup or install procedure. You also create an "instance" of
software by duplicating an existing instance. References to software include
"instances" of the software. You "run an instance" of software by loading it
into memory and executing one or more of its instructions. Once running, an
instance is considered to be running (whether or not its instructions continue
to execute) until it is removed from memory.
17.3. Privacy; Data Protection. You agree that CoSoSys may process technical
and related information about You and Your End Users’ use of the CoSoSys
Software (which may include hardware identification, operating system,
application software, peripheral hardware, internet protocol address etc.) as
well as about the performance of the CoSoSys Software in accordance with its
Privacy Notice. Each party will comply with its respective obligations under
applicable data protection legislation and/or regulations ("Applicable Data
Laws") and will maintain appropriate administrative, physical, technical, and
organizational measures that provide an appropriate level of security. You
represent and warrant that, with respect to any customer data (including,
without limitation, any Personal Data), transmitted, hosted, stored or
processed using the CoSoSys Software (i) You are in compliance with all
Applicable Data Laws, and (ii) You have obtained all permissions and/or
approvals from each applicable data source as may be necessary or required to
transmit such data through the CoSoSys Software. In addition, You agree, at
CoSoSys’ request, to execute and/or enter into any documents, agreements,
statements, or policies deemed necessary or appropriate by CoSoSys in its
discretion to comply with any Applicable Data Laws with respect to any Personal
Data. CoSoSys may disclose the collected information if asked to do so by a law
enforcement official as required or permitted by law or in response to a
subpoena or other legal process. In order to promote awareness, detection and
prevention of removable storage risks, CoSoSys may use statistics derived from
the information to track and publish reports on security risk trends. By using
the CoSoSys Software, you acknowledge and agree that CoSoSys may collect,
transmit, store, disclose and analyze such information for these purposes.
Copyright © 2004 - 2021 CoSoSys SRL and its licensors. All rights reserved.
CoSoSys reserves the right to change specifications without notice. Use of this
product is subject to the acceptance of the End User License Agreement upon
installation of the Software. www.CoSoSys.com, www.EndpointProtector.com
If you have any questions concerning this Agreement, please contact us at
legal@cososys.com