COSOSYS MY ENDPOINT PROTECTOR SERVICE AGREEMENT
This My Endpoint Protector Service Agreement (the “Agreement”) is entered into by and between CoSoSys Ltd., a Romanian corporation, with offices at Someșului 14, Ground Floor, Cluj-Napoca, Romania (“CoSoSys”) and the entity agreeing to these terms (“Customer”). This Agreement is effective as of the date you click the “I Accept” button below (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not click the “I Accept” button below. This Agreement governs Customer’s access to and use of the Service.
1.1. Generally. CoSoSys will provide the Services to Customer during the Term of this Agreement. CoSoSys will provide Customer with a password and an administrative account to use for administering the My Endpoint Protector Reporting and Administration Tool and other related user accounts, and other relevant features of the Service, if applicable. Customer may use the Services to: (a) provide end user accounts to its end users; and (b) administer end user accounts through the Reporting and Administration Tool console.
1.2. Facilities. All facilities used to store and process Customer data will adhere to reasonable security standards no less protective than the security standards at facilities where CoSoSys stores and processes its own information of a similar type. CoSoSys has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer data, protect against anticipated threats or hazards to the security or integrity of Customer data, and protect against unauthorized access to or use of Customer data.
1. a. To the Services. CoSoSys may make commercially reasonable modifications to the Service, or particular components of the Service, from time to time. CoSoSys will use commercially reasonable efforts to notify Customer of any such changes.
2. b. To Applicable Terms. If CoSoSys makes a material change to the terms, then CoSoSys will notify Customer by either sending an e-mail to the notification e-mail address or alerting Customer via the Reporting and Administration Tool console. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify CoSoSys via the Help/Support center within thirty days after receiving notice of the change. If Customer notifies CoSoSys as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current term for the affected Services. If the affected Services are renewed, they will be renewed under CoSoSys's then current Terms.
1.5. Data Transfer. As part of providing the Service, CoSoSys may store and process Customer Data in the United States or any other country in which CoSoSys or its agents maintain facilities. By using the Services, Customer consents to this transfer, processing and storage of Customer Data.
2. Customer Obligations.
2.1 Compliance with the Agreement. Customer will comply with the Acceptable Use Policy and the Agreement, and will use best efforts to ensure its End Users do the same. CoSoSys may make additional applications, features or functionality available from time to time through the Service, the use of which may be contingent upon Customer’s agreement to additional terms.
2.2 Customer Administration of the Services. Customer may specify one or more Administrators through the Reporting and Administration Tool console who will have the rights to access the Administrator Account and to administer the End User Clients. Customer is responsible for: (a) maintaining the confidentiality of the password and Administrative Account; (b) designating those of its employees who are authorized to access the Administrative Account; and (c) ensuring that all activities that occur in connection with the Administrative Account comply with the Agreement. Customer agrees that CoSoSys’s responsibilities do not extend to the internal management or administration of Customer’s My Endpoint Protector system and that CoSoSys is merely a data-processor.
2.3 Privacy. Customer agrees to protect the privacy rights of its End Users under all applicable laws and regulations. Customer’s Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Clients. Customer will obtain and maintain consent from all End Users to Customer’s access, monitoring, use or disclosure of this data, and to CoSoSys providing Customer with the ability to do so. Customer is responsible for obtaining any necessary authorizations from End Users to enable CoSoSys to provide the Services.
2.4 Unauthorized Use. Customer will use all commercially reasonable efforts to prevent unauthorized use of the Service, and to terminate any unauthorized use. Customer will promptly notify CoSoSys of any unauthorized use of, or access to, the Services of which it becomes aware.
3. Requesting End User Clients; Service Term.
3.1 Initial Term; Prorated Terms. The initial term for Accounts purchased prior to the Service Commencement Date will be three, six, twelve, twenty-four or thirty-six months beginning on the Service Commencement Date. End User Clients purchased after the Service Commencement Date will have a prorated term ending on the anniversary of the Service Commencement Date. CoSoSys may revise its rates with at least thirty days prior written notice to Customer, including by e-mail, effective for the following term.
3.2 Automatic Renewal. The default setting for the Services is auto renewal for all End User Clients. If the automatic renewal setting is enabled, after the initial term each End User Client will automatically renew on each anniversary of the Service Commencement Date for an additional twelve month term. Customer will pay CoSoSys the then-current yearly Fees for each renewed End User Client unless Customer and CoSoSys mutually agree otherwise. Customer may alter the number of End User Clients to be renewed by communicating the appropriate number of accounts to be renewed to CoSoSys via the Admin Console.
3.3 Disabling Automatic Renewal. Customer may disable the automatic renewal option via the Admin Console. If Customer disables this automatic renewal setting, Customer’s End User Clients will terminate upon the conclusion of the then current term. CoSoSys may re-enable the automatic renewal setting on Customer’s behalf if Customer reduces or modifies the number of End User Clients scheduled for renewal via the Admin Console.
3.4 Requesting End User Clients. Customer may request End User Clients by: (i) notifying its designated CoSoSys Account Manager; (ii) ordering End User Clients via the Admin Console online.
4.1 Payment. All payments due are in U.S. Dollars or Euros unless otherwise indicated on the Order Page or invoice.
a. Credit Card Orders. Fees for Credit Card orders are due immediately upon order placement. CoSoSys will bill the credit card provided via the Order Page for all applicable Fees when due. If credit card authorizations or charge attempts are declined, CoSoSys may immediately disable or cancel the Service, in its sole discretion.
b. Invoice Orders. Fees for orders where CoSoSys issues an invoice are due upon Customer’s receipt of the invoice, and are considered delinquent thirty days after the date of the applicable invoice.
4.2 Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by CoSoSys in collecting delinquent amounts, except where such delinquent amounts are due to CoSoSys’s billing inaccuracies.
4.3 Taxes. Customer is responsible for any Taxes, and Customer will pay CoSoSys for the Services without any reduction for such amounts. If CoSoSys is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides CoSoSys with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to CoSoSys, Customer must provide CoSoSys with an official tax receipt or other appropriate documentation to support such payments.
5. Technical Support Services. If Customer cannot resolve a support issue, then Customer may escalate the issue to CoSoSys in accordance with the applicable Technical Support Guidelines. CoSoSys will respond in accordance with the applicable Technical Support Guidelines.
6.1 Of End User Clients By Customer. If Customer becomes aware of an End User’s violation of the Agreement, unless CoSoSys agrees otherwise in writing (including by e-mail), Customer may Suspend the applicable End User Client. The duration of any Suspension will be until the applicable End User cures the breach giving rise to such Suspension. Customer may Suspend its End Users for its own reasons.
6.2 Of End User Clients by CoSoSys. If Customer fails to Suspend an End User Client pursuant to Section 6.1 above, then CoSoSys may specifically request that Customer do so. If Customer fails to comply with CoSoSys’s request to Suspend an End User Client, then CoSoSys reserves the right to do so. The duration of any Suspension by CoSoSys will be until CoSoSys is reasonably satisfied that the applicable End User has cured the breach which caused the Suspension.
6.3 Of the Services by CoSoSys. If: (i) Customer materially violates this Agreement; (ii) CoSoSys provides Customer with commercially reasonable notice of this violation (which may be by e-mail to the Notification E-mail Address); (iii) CoSoSys uses commercially reasonable efforts to discuss and resolve the violation with Customer; and (iv) despite the foregoing, the violation is not resolved to CoSoSys’s reasonable satisfaction, then CoSoSys reserves the right to Suspend administrative access to the Service, or to particular components of the Service. If, after all of the foregoing, Customer still has not cured a violation within thirty days of the commencement of a suspension under this Section, then CoSoSys may immediately terminate the Services for cause.
6.4 Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then CoSoSys may automatically suspend the offending use. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or terminate the Emergency Security Issue. If CoSoSys Suspends an End User Client for any reason without prior notice to Customer, at Customer’s request, CoSoSys will provide Customer the reason for the Suspension as soon as is reasonably possible.
7. Confidential Information.
7.1 Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any affiliates, employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfil obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its affiliates, employees and agents in violation of this Section.
7.2 Exceptions. Confidential Information does not include information that:
(a) the recipient of the Confidential Information already knew;
(b) becomes public through no fault of the recipient;
(c) was independently developed by the recipient; or
(d) was rightfully given to the recipient by another party.
7.3 Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.
7.4 The Reporting and Administration Tool. CoSoSys will provide the Reporting and Administration Tool only as a part of providing the Service. Customer misuse of the Reporting and Administration Tool is considered a material breach of the Agreement.
8. Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and CoSoSys owns all Intellectual Property Rights in the Services.
9. Restrictions on Use. Unless CoSoSys specifically agrees in writing, Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) alter the Service Pages; (b) alter information transmitted through the Services to End Users (except as required to comply with the terms of this Agreement or commercially reasonable internal policies of Customer); (c) share content or documentation provided by CoSoSys to Customer as a part of CoSoSys’s provision of the Services with any third party; (d) except as expressly authorized in the Agreement, sell, resell, lease, or the functional equivalent, the Services to a third party; (e) attempt to reverse engineer the Services or any component of the Services; (f) attempt to create a substitute or similar service through use of, or access to, the Services; or (g) use the Services for High Risk Activities.
10. Publicity. Customer hereby consents to CoSoSys’s inclusion of Customer’s name in a Customer list, but only if Customer is not the only Customer appearing on the list. Other than this, neither party may make any public statement regarding the relationship contemplated by this Agreement without the other party’s prior written consent.
11. Representations and Disclaimers.
11.1 Representations. Each party represents that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable. CoSoSys warrants that it will provide the Services in accordance with the applicable SLA (Service Level Agreement).
11.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. COSOSYS MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICE. THE SERVICE IS NEITHER DESIGNED NOR INTENDED FOR HIGH RISK ACTIVITIES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS.
12.1 Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
12.2 Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately; (ii) CoSoSys will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at CoSoSys’s then-current rates for the applicable Service; (iii) after a commercially reasonable period of time, CoSoSys will delete Customer Data pursuant to the CoSoSys Privacy Notice; and (iv) upon request each party will promptly return or destroy all other Confidential Information of the other party.
13.1 By Customer. Customer 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 Customer Data; (ii) that Customer use infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer’s, or its End Users’, use of the Services in violation of the Agreement. CoSoSys will reasonably assist Customer in presenting usability to its End Users, if Customer would like to pass through certain of its obligations under this section to its End Users.
13.2 By CoSoSys. CoSoSys will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that CoSoSys’s technology used to provide the Services or any CoSoSys features infringe or misappropriate any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall CoSoSys have any obligations or liability under this Section arising from: (i) use of any Services or CoSoSys features in a modified form or in combination with materials not furnished by CoSoSys, and (ii) any content, information or data provided by Customer, End Users or other third parties.
13.3 Possible Infringement.
(i) Repair, Replace, or Modify. If CoSoSys reasonably believes the Services infringe a third party’s Intellectual Property Rights, then CoSoSys will: (a) obtain the right for Customer, at CoSoSys’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe.
(II). Suspension or Termination. If CoSoSys does not believe the foregoing options are commercially reasonable, then CoSoSys may suspend or terminate Customer’s use of the impacted Services. If CoSoSys terminates the impacted Services, then CoSoSys will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of the Services.
13.4 General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defence, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defence with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE THE ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
14. Limitation of Liability.
14.1 Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
14.2 Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO COSOSYS DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
14.3 Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
15.1 Notices. All notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact. Notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) when verified by automated receipt or electronic logs if sent by facsimile or e-mail.
15.2 Assignment. Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
15.3 Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control; and (b) the other party may immediately terminate this Agreement any time between the change of control and thirty days after it receives the written notice in subsection (a).
15.4 Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.
15.5 No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.
15.6 Severability. If any provision of this Agreement is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
15.7 No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.
15.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
15.9 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
15.10 Governing Law. This Agreement is governed by Romanian law, excluding that state’s choice of law rules. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN CLUJ-NAPOCA, CLUJ.
15.11 Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.
15.12 Survival. Those provisions that by their nature should survive termination of this Agreement, will survive termination of this Agreement.
15.13 Entire Agreement. This Agreement, and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.
15.14 Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, the EULA and the terms of the SLA.
15.15 Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.
“Account Manager” means the CoSoSys business person working with Customer regarding Customer’s purchase of the Services.
“Admin Account” means the administrative account provided to Customer by CoSoSys for the purpose of administering the End User Clients. The use of the Admin Account requires a password, which CoSoSys will provide to Customer.
“Reporting and Administration Tool” means the online tool provided by CoSoSys to Customer for use in reporting and administration of the services to End Users, which may include, among other things, account maintenance, enforcement of Customer usage policies.
“Administrators” mean the Customer-designated technical personnel who administer the Services to End Users on Customer’s behalf.
“Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Customer Data is Customer’s Confidential Information.
“Customer Data” means data, device use data, file tracing records, including e-mail, provided, generated, transmitted or displayed via the Services by Customer or End Users.
“Emergency Security Issue” means either: (a) an End User’s use of the Services in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other End Users’ use of the Services; or (iii) the CoSoSys network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
“End Users” means the individuals Customer permits to use the Services.
“End User Client” means Client software provided to End Users through the Services for the purpose of enabling such End Users to use the Service.
“Fees” means the amounts invoiced to Customer by CoSoSys for the Services as described in an Order Page.
“Help / Support Center” means the CoSoSys help center accessible at http://www.cososys.com/support/ or other such URL as may be provided by CoSoSys.
“High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the failure of the Services could lead to death, personal injury, or environmental damage.
“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.
“Notification E-mail Address” means the e-mail address designated by Customer to receive e-mail notifications from CoSoSys. Customer may change this e-mail address through the Admin Console.
“Order Page” means the online order or e-store page Customer completes in signing up for the Services, and which contains: (i) the Service being ordered; (ii) Fees; (iii) number of, and Initial Term for, End User Clients; (iv) a valid credit card.
“Purchase Order” means a Customer issued purchase order.
“Service” means the CoSoSys My Endpoint Protector Service provided by CoSoSys and used by Customer under this Agreement. The Services are as described on the http://www.endpointprotector.com product page, or other such URL as may be provided by CoSoSys.
“Service Commencement Date” is the date upon which CoSoSys makes the Services available to Customer, and will be within one week of CoSoSys’s receipt of the completed Order Page, unless otherwise agreed by the parties.
“SLA” means the Service Level Agreement here: http://www.cososys.com/eula/My_Endpoint_Protector_Service_Agreement.html or other URL as updated by CoSoSys from time to time.
“Suspend” means the immediate disabling of access to the Service, or components of the Service, as applicable, to prevent further use of the Service.
“Taxes” means any duties, customs fees, or taxes (other than CoSoSys’s income tax) associated with the sale of the Services, including any related penalties or interest.
“Term” the term of the Agreement will begin upon the Effective Date and continue for as long as Customer is receiving Services from CoSoSys, unless terminated earlier pursuant to the Agreement.
“Third Party Request” means a request from a third party for records relating to an End User’s use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.
Date: 9. April 2009