COSOSYS / ENDPOINT PROTECTOR SOFTWARE END USER LICENSE AGREEMENT
COSOSYS SRL (LTD.) 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 AND CONDITIONS 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.
“Affiliates” means, with respect to a party at a given time, an entity that is directly or indirectly controlled by, is under common control with, or controls that party, and here “control” means the direct or indirect ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of that entity.
“Channel Partner” means an authorized Reseller or Distributor by CoSoSys.
“Content Updates” include but are not limited to a cumulative set of fixes and improvements to the CoSoSys Software, which is generally released by CoSoSys to its customers.
“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 earliest of either the start date of the Subscription Term as specified in the applicable Order Form and License Instrument, or the acceptance of this License Agreement through any of the means indicated above, in the introduction.
„End User” means Your employees or contractors who are authorized to use the CoSoSys Software on a device, solely for Your internal business purposes, subject to the applicable Use Levels and otherwise in compliance with this License Agreement. An End User is the person and/or device that actually uses any portion of the CoSoSys Software.
“Fees” means the amounts invoiced to Customer or to Channel Partner by CoSoSys for the CoSoSys Software as described in an Order Form and/or on an invoice.
“Intellectual Property Rights” means current and future worldwide rights, title and interest 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 License 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, and/or an invoice.
“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 and Support 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 9.
“Upgrade” means one or more of the following: to switch to a new license type, to increase the functionality of the CoSoSys Software (i.e., to add a new feature or module), and/or hardware tier or licensing meter 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.
- COSOSYS SOFTWARE
2.1. LICENSE GRANT
2.1.1. 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 17.1), 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 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).
2.1.2. 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.
2.1.3. Each running instance (physical and/or virtual) of the 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.
2.2. TERM. Subject to termination as set forth in Section 15(Termination) of this License Agreement, the term of this License Agreement will commence on the Effective Date and will continue for as long as You have an active Subscription under an Order Form and this License 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. 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. All Intellectual Property Rights with respect to any CoSoSys Software (including but not limited to Documentation and Upgrades) remain the property of CoSoSys and its Licensors. CoSoSys or its licensors retain all right, 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 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. 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.
2.4. LICENSE RESTRICTIONS. You may not (and you will not allow any third party to) conduct, cause or permit the: (i) use, copying, distribution, modification, assignment, 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 a service bureau, facility management, timeshare, service provider or similar 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; (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 of 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) removal or alteration in any way of 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 License 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 License Agreement, the Documentation and the applicable Use Levels. You acknowledge and agree that any breach of this License Agreement by any End User will be deemed a breach by You.
- PAYMENT AND FEES
- The Fees and payment terms, including currency, payable by You to CoSoSys for the Licensed Software will be set forth in each corresponding 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. To the maximum extent permitted by law, all Fees paid or payable are non-refundable.
- 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.
- Fees for orders where CoSoSys issues an invoice, are due upon Customer’s receipt of the invoice, and are considered delinquent thirty (30) days after the date of the applicable invoice. Delinquent payments may bear interest at the rate of one-and-a-half (1.5) percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You 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’ billing inaccuracies.
3.2. TAX. 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 License 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 License 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 a 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. PURCHASING THROUGH A CHANNEL PARTNER. In case You purchase the CoSoSys Software through a Channel Partner: (i) You will pay the Channel Partner directly according to the applicable agreement between Customer and Channel Partner, (ii) Channel Partner is responsible for the accuracy of the order details (number of end users, term of Subscription etc.) communicated to CoSoSys, (iii) in case the Customer is entitled to a refund, CoSoSys will refund the applicable Fees to the Channel Partner and the Channel Partner will be solely responsible for refunding the corresponding amounts to Customer, and (iv) CoSoSys does not authorize any of the Channel Partner to modify the terms of this Agreement or make any promises and commitments on behalf of CoSoSys. CoSoSys is not bound by any obligations to Customer other than as set forth in this Agreement. CoSoSys may suspend the delivery of the licenses in case CoSoSys has not received the payment from the Channel Partner for the respective licenses.
3.4. CHANGES TO FEES. CoSoSys may change its Fees and payment terms at its discretion, provided however, that CoSoSys provides an advance written notice and 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.
- CONTENT UPDATES
4.1. 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.
4.2. 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.
- UPGRADES. CROSS-GRADES
CoSoSys reserves the right to require that 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.
- LIMITED WARRANTY
6.1. 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.
6.2. PERFORMANCE WARRANTY. CoSoSys warrants that the CoSoSys Software, as delivered by CoSoSys and when used in accordance with the Documentation and this License Agreement, will perform substantially in conformance with the Documentation for a period of ninety (90) days from delivery of a major release. If the CoSoSys Software does not comply with this warranty and such non-compliance is reported by You to CoSoSys within the corresponding ninety (90) days’ warranty period, CoSoSys will do one of the following, selected at CoSoSys’ reasonable discretion: (i) repair the CoSoSys Software, or (ii) replace the CoSoSys Software with software of substantially the same functionality, or (iii) only if the non-compliance occurs within the first ninety (90) days from the Effective Date, 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, unauthorized modifications or third-party products, software, services or equipment; or (c) if the CoSoSys Software is used in breach of this License Agreement. THE FOREGOING ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR COSOSYS’ BREACH OF THIS WARRANTY.
6.3. WARRANTY DISCLAIMERS. OTHER THAN THE LIMITED WARRANTY IN SECTIONS 6.1 and 6.2 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 LICENSE 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 THAT ALL DEFECTS CAN BE CORRECTED, OR MEET YOUR REQUIREMENTS.
7.1. BY YOU. You will indemnify, defend, and hold harmless CoSoSys from and against liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim: (i) regarding Your data, including but not limited to Your failure to follow applicable laws and obtain all necessary consents related to 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 License Agreement.
7.2. BY COSOSYS.
- CoSoSys will indemnify, defend, and hold You harmless from and against 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, and that the total aggregate Fees paid or payable by You in the twelve (12) months’ period immediately preceding any claim is higher than USD 25,000. In such an 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 the claim is arising from: (i) the CoSoSys Software or portions or components thereof (a) not created by CoSoSys; (b) that are modified by You or any third party 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 License Agreement and/or the Documentation or Your failure to apply an Update made available by CoSoSys that would resolve the alleged infringement; (v) Your settlement or attempt to settle any claim without CoSoSys’ involvement and prior written consent; or (vi) a Trial Version.
- 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.
7.3. 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 defense, 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 defense with its own counsel at its own expense. THIS SECTION 7 (INDEMNIFICATION) STATES COSOSYS’ SOLE LIABILITY AND THE CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE COSOSYS SOFTWARE OR OTHER ITEMS COSOSYS PROVIDES UNDER THESE TERMS.
- 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, CHANNEL PARTNERS, 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, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE, EVEN IF COSOSYS OR ITS LICENSORS, CHANNEL PARTNERS, SUPPLIERS OR AGENTS HAVE BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. COSOSYS’ AND ITS LICENSORS’ LIABILITY IN THE AGGREGATE UNDER THIS LICENSE AGREEMENT WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE AMOUNT OF THE FEES YOU PAID, IN THE TWELVE (12) MONTHS’ PERIOD PRECEDING THE DATE A CLAIM IS FIRST ASSERTED AGAINST COSOSYS OR ITS LICENSORS, FOR THE COSOSYS SOFTWARE GIVING RISE TO THE CLAIM. NOTHING IN THIS LICENSE 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. IN THE ABSENCE OF A STATUTE OF LIMITATIONS MANDATED BY THE APPLICABLE LAW, YOU MAY NOT BRING A CLAIM UNDER THIS LICENSE AGREEMENT MORE THAN EITHER EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ARISES.
- MAINTENANCE AND SUPPORT
9.1. 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 Services Policy. CoSoSys also offers a Premium Support option, further detailed in the Maintenance and Support Services Policy, which Customer has the possibility to purchase at a price agreed between the parties.
9.2. 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.
- 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 License 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 Content 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 (License Restrictions), 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.
11.1. CONFIDENTIAL INFORMATION. Each party may gain access to confidential information belonging to the other party or its Affiliates, including but not limited to (i) the CoSoSys Software and Documentation and (ii) highly sensitive business, financial and technological information marked as confidential or proprietary (collectively “Confidential Information”) that constitutes and shall constitute valuable assets and/or trade secrets. Accordingly, when a party receives Confidential Information from the other party, such party shall (i) keep it in strict confidence in the same manner as it would keep its own Confidential Information, (ii) not disclose it to any third party, with the exception of its or its Affiliates’ employees, contractors or subcontractors (including officers, directors, shareholders, service providers and professional advisors) who have a need-to-know basis and have entered into nondisclosure agreements offering materially the same level of protection. These duties of confidentiality do not apply to Confidential Information which, through no breach of this License Agreement (i) is or comes in the public domain, or (ii) is received from a third party who is not under an obligation of confidentiality, or (iii) is known or developed independently by the receiving party. The duties of confidentiality shall survive the expiration or termination of this License Agreement for at least five (5) years, provided that for trade secrets they shall survive indefinitely. Each party may disclose the other party’s Confidential Information when required by law but only after, if legally permissible, it: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure and (c) maintains the confidentiality after the disclosure.
11.2. FEEDBACK. 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.
- DATA AND DATA PROTECTION
- 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. CoSoSys reserves all rights, whether published or unpublished, under the copyright laws of the United States. 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 this License Agreement, which can be complemented with strictly applicable provisions of statutes, regulations, and the terms of the GSA Schedule. In the event of conflict between this License Agreement and any provisions of the respective statutes, regulations and the terms of the GSA Schedule, this License Agreement will prevail to the fullest extent permitted by the law.
- 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 hereby agree that You will not export, use or sell the CoSoSys Software (i) 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; and/or (ii) in any territory falling within the scope of US and EU sanctions lists; and/or (iii) for the benefit of any country, organization, individual or other type of entity falling within the scope of the US and EU sanctions lists. 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.
15.1. TERMINATION FOR CAUSE. 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 an Order Form and this License Agreement. Either party may terminate this License Agreement immediately without further notice if the other party materially breaches its obligations under this License 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 License Agreement and any or all Order Forms without liability to the other party (i) if the other party enters into compulsory or voluntary liquidation, ceases for any reason to carry on business, has a receiver or trustee appointed or takes or is subject to any similar action under the applicable law and such proceedings and/or actions are not dismissed or resolved in ninety (90) days, or (ii) immediately, if the other party is declared bankrupt or insolvent.
15.2. TERMINATION FOR CONVENIENCE. Neither party may terminate this License Agreement for convenience. Customer’s unilateral decision to stop using the CoSoSys Software at any time for any reason other than exercising its rights pursuant to Section 15.1 (Termination for Cause) shall neither entitle Customer to any refund of any prepaid Fees, nor relieve Customer’s obligation to pay the Fees committed to in an Order Form, throughout the end of the contracted Term, regardless if Customer uses the CoSoSys Software or not.
15.3. EFFECTS OF TERMINATION. Upon the termination of this License Agreement for any reason: (i) the licenses and rights granted to You under this License 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 for the CoSoSys Software under an Order Form, invoice or similar ordering document. 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 LICENSE AGREEMENT. All logs and reports will still be accessible after termination.
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, Intellectual Property Rights, Warranty Disclaimers, Limitation of Liability, U.S. Government Restricted Rights, Confidentiality, Effects of Termination, Export Regulation, Survival, General or any other clause(s) which by their nature are intended to continue beyond the termination or expiration of this License Agreement.
17.1. 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 License 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 License Agreement hereunder without Your consent. The provisions hereof are for the benefit of the parties and their permitted assigns only and not for any other person or entity.
17.2. 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
17.3. GOVERNING LAW. SEVERABILITY. WAIVER. This License Agreement will be governed by the Law of England and Wales, excluding its provisions regarding conflict of laws, and any disputes not resolved amicably shall be submitted to the exclusive jurisdiction of the courts of London, United Kingdom. The United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act shall not apply to this License Agreement, or any actions hereunder. 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.
17.4. 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 License Agreement. Title to Open Source Software remains with the applicable licensor(s). Any Open Source Software provided with or contained in the CoSoSys 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. You acknowledge that, other than stated herein, CoSoSys can never be liable for any Open Source Software.
17.5. 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 firstname.lastname@example.org.
17.6. PUBLICITY. You hereby consent to CoSoSys’ 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. In case the Customer would like to be excluded from such list, Customer shall send a written notification to CoSoSys, and CoSoSys shall certify the exclusion accordingly.
17.7. 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.
17.8. NO AGENCY. The parties are independent contractors, and this License Agreement does not create an agency, partnership or joint venture or any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
17.9. 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.
17.10. 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 be modified by a License Instrument that accompanies or follows this License Agreement. If any term of this License Agreement shall to any extent be declared invalid or unenforceable, such term or provision shall be enforced to the maximum extent permissible to reflect the intent of the parties, and the remainder of this License Agreement shall not be affected hereby, and each term and provision of this License 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.
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 License Agreement, please contact us at email@example.com.