CYOLO SECURITY LTD. END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) permits Customer (as defined in the Order Form) to purchase a Subscription to Products and related Services from an authorized distributor, MSSP or reseller (“Partner“) of Cyolo Security Ltd. (“Cyolo“) pursuant to Cyolo’s Partner’s Order Forms referencing this Agreement and set forth the terms and conditions under which those Products and Services will be delivered. This Agreement shall govern Customer’s initial purchase as well as any future purchases made by Customer pursuant to an Order Form which reference this Agreement. This Agreement includes any and all attachments and Order Forms executed by the Customer and Cyolo’s Partner.
1. ORDERING SUBSCRIPTIONS
- “Subscription” means the right of Customer to receive or access the applicable Product, and to receive end user technical support and maintenance for the Products (“Support“) during the Subscription Term.
- “Product” means the applicable products as specified on the Order Form and the relevant Client Plug-in and Add-On Software as specified on the Order Form. The term “Product” shall also include any Documentation for the Products provided to Customer under this Agreement.
- “Client Plug-in” means any client or device side application or plug-in which Cyolo makes generally publicly available without charge for interacting the Product. The term “Client Plug-in” shall also include any Documentation for the Client Plug-in and any Updates of the same Client Plug-in product provided to Customer (or the Customer’s users of the Products, “Users“) under this Agreement.
- “Documentation” means the documentation generally made available to Customer by Cyolo that accompanies the Product.
- “Updates” means generally commercially released code corrections, patches, updates, new releases, modifications or enhancements to the Product. Updates do not include separate or different products marketed by Cyolo under a different name even if such products are compatible with the Product.
- “Add-On Software” means software licensed by Customer pursuant to this Agreement and identified as Add-On Software on the applicable Order Form. Add-On Software licenses are purchased on a Subscription basis, subject to the terms of this Agreement.
- “Service” means the applicable Support (as defined below) or other services specified on the applicable Order Form.
3. CUSTOMER DATA AND TRACKING
(a) Tracking. Customer acknowledges that certain features of the Products enable Customer to track the activity of a User who accesses or performs activities in connection with a Customer document, including without limitation the placement of time stamps, collection of IP addresses and geographic locations, and the tracking of users’ actions taken in connection with the Customer document. Customer is solely responsible for ensuring that its use of these features of the Products is permitted and is otherwise in compliance with all applicable privacy laws, rules and regulations, and for obtaining any required consents from the relevant Users.
(b) Reporting. During the Subscription Term, Customer agrees that Cyolo may create reports from time to time for the purposes of providing 1) Usage support data, and 2) User license/true up data. To create such reports, Cyolo may run a mutually approved upon reporting script, or create other report formats, that summarize usage data such as the number of discrete users of the product and such other additional information that may be required for support. Unless otherwise agreed in writing, the mutually approved script and or reporting will only include aggregated data and will not include or disclose any Customer Data.
5. FEES AND PAYMENT
6. TERM AND TERMINATION
7. LIMITED WARRANTY AND DISCLAIMER
(a) Updates to the Product. On a regular basis, Cyolo releases Updates to the Product. Cyolo or Cyolo’s Partner will notify Customer (Customer to provide a contact person) when such Updates become generally available for installation by Cyolo.
(b) Updates to Client Plug-In. From time-to-time, Cyolo will make Updates available for the Client Plug-In. Cyolo or Cyolo’s Partner will notify Customer (Customer to provide a contact person) when such Client Plug-In Updates become generally available by Cyolo.
(c) Update Disclaimer. A FAILURE BY USERS TO INSTALL CLIENT PLUG-IN UPDATES, MAY CAUSE THE SOFTWARE TO SUFFER DEGRADED FUNCTIONALITY, FAIL TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION, OR CEASE WORKING ALTOGETHER. CYOLO WILL NOT BE RESPONSIBLE FOR ANY SUCH RESULTING OR CONSEQUENTIAL EFFECTS, LOSSES OR DAMAGES AND SUCH EFFECTS WILL NOT CONSTITUTE BREACH OF THIS AGREEMENT OR GRANT CUSTOMER ANY RIGHT TO TERMINATE THIS AGREEMENT. There is no set schedule for the provision of Updates.
(d) Support and maintenance are provided for the current release of the Product and the immediately prior sequential release for a period of one (1) month from the date of the current release. Customer is responsible for ensuring that it: (a) enables Cyolo to provide Updates to the Products as set forth in this Section 8 (Updates to the Products); and (b) distributes Updates to the Client Plug-In to Users as set forth in this Section 8 (Client Plug-In Updates). CUSTOMER ACKNOWLEDGES THAT PLATFORMS RELATED TO THE CLIENT PLUG-IN ARE CONSTANTLY SUBJECT TO UPDATES BY THE MANUFACTURER AND CUSTOMER WILL BE OBLIGATED TO UPGRADE ITS DEVICES TO MAINTAIN COMPATIBILITY WITH THE CLIENT PLUG-IN AND SOFTWARE. CUSTOMER’S failure to permit Cyolo to install updates to the PRODUCTS OR FAILURE BY USERS to install client plug-in UPDATES MADE AVAILABLE BY CYOLO OR THROUGH AN APP STORE MAY CAUSE the Product TO suffer degraded functionality, fail to perform in accordance with the Documentation OR CEASE WORKING ALTOGETHER. Cyolo or Cyolo’s partner will not be responsible for any SUCH resulting or consequential effects, losses or damages and such effects will not constitute breach of this agreement or grant customer any right to terminate this agreement.
9. LIMITATION OF REMEDIES AND DAMAGES
NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST or INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, exemplary OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, Cyolo AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CYOLO’S PARTNER TO CYOLO DURING THE PRIOR TWELVE (12) MONTHS IN CONNECTION WITH THIS AGREEMENT.
THIS SECTION 9 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “PRODUCTS,” “CLIENT PLUG-IN”, “CUSTOMER DATA AND TRACKING”, “CYOLO TECHNOLOGY”, “FEEDBACK” OR “CONFIDENTIAL INFORMATION”.
The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Subject to the terms of this Section 10, Cyolo shall defend Customer from and against any claim of infringement of a patent, copyright, or trademark issued in the United States that is asserted against Customer by a third party based upon Customer’s use of Products in accordance with the terms of this Agreement, provided that Cyolo shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Cyolo to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of any Product is, or in Cyolo’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Cyolo may, in its sole discretion: (a) substitute substantially functionally similar products or services for the affected Product; (b) procure for Customer the right to continue using the affected Product; or if (a) and (b) are commercially impracticable, (c) terminate the license to use the affected Product, or if deemed necessary by Cyolo, terminate this Agreement, and refund to Customer the fees paid by Customer for the affected Product(s) for the portion of the Subscription Term which was paid by Customer but not rendered by Cyolo. The foregoing indemnification obligation of Cyolo shall not apply: (1) if a Product is modified by any party other than Cyolo, but solely to the extent the alleged infringement is caused by such modification; (2) if a Product is combined with other non-Cyolo products or processes not authorized by Cyolo, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Products; (4) to any unsupported release of the Products; or (5) any action arising as a result of Customer Data or any third party deliverables or components contained within Products.
THIS SECTION 10 SETS FORTH CYOLO’s AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
11. CONFIDENTIAL INFORMATION
Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Cyolo Technology provided by Cyolo or Cyolo’s Partner (or their agents), performance information relating to the Products, and the terms and conditions of this Agreement shall be deemed Confidential Information of Cyolo without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
12. GENERAL TERMS
- The trademark, service mark, trade dress, name, or other indicia of origin (“mark”) that is claimed to be infringed, including registration number.
- The jurisdiction or geographical area to which the mark applies.
- The name, post office address and telephone number of the owner of the mark identified above.
- The goods and/or services covered by or offered under the mark identified above.
- The date of first use of the mark by the owner identified above.
- The date of first use in interstate commerce of the mark by the owner identified above.
- A description of the manner in which the Complaining Party believes its mark is being infringed upon.
- Sufficient evidence that the owner of the mark that is claimed to be infringing is a Cofense customer, if applicable.
- The precise location of the infringing mark, including electronic mail address, etc.
- A statement that the Complaining Party has a good faith belief that use of the mark in the manner complained of is not authorized by the trademark owner, its agent, or the law; and
- A good faith certification, signed under penalty of perjury, stating that the Complaining Party is the owner, or is authorized to act on behalf of the owner, of the mark alleged to be infringed and that the information included in the notice is accurate.