End User License Agreement

This End User License Agreement (“EULA”) is between the business entity that will use the Software (“You”) and Kognition, LLC (“Kognition”).

This EULA governs Your use of: (a) the object code version of Kognition software provided to You pursuant to a purchase contract, quote, order form, invoice or online procurement process (each, an “Order”); (b) associated software license keys, if any (“License Keys”); (c) updates to such software (“Updates”); (d) the documentation for such software; and (e) all copies of the foregoing (collectively, “Software”). If You accept this EULA, or if You install or use the Software, then You agree to this EULA. If You do not agree to this EULA, do not install or use the Software.

  1. License Grant.

  1. Right to Use. Subject to and in consideration of your full compliance with the terms and conditions of this EULA, Kognition grants to You a personal, non-exclusive license to use the Software during the period stated in the applicable Order. This license grant allows You to use the Software in connection with the internal business operations of Your entity. In addition, You may make a reasonable number of copies of the Software solely as needed for backup or archival purposes. 

  1. Third Party Use. You may allow Your contractors (each, a “Permitted Third Party”) to use the Software solely for the purpose of providing services to You, provided that such use is in compliance with this EULA.  You are liable for any breach of this EULA by any Permitted Third Party.

  1. Rights Reserved. The Software is licensed and not sold. Except for the license expressly granted in this EULA, Kognition, on behalf of itself and its affiliates and suppliers, retains all rights in and to the Software and in all related materials (“Works”). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereafter developed. Any use of Works other than as expressly set forth herein is strictly prohibited.

  1. Ownership. Kognition retains ownership of the Works and all related intellectual property rights. If Software is provided to You on removable media (e.g., CD, DVD or USB drive), You may own the media on which the Software is recorded.

  1. License Conditions.

  1. You and Your Permitted Third Parties must do the following:
    1. Run the Software only on the hardware for which it was intended to operate, when applicable;
    2. Use License Keys (if applicable) only from Kognition or an authorized reseller of the Software (a “Reseller”);
    3. Treat the Software as Kognition confidential information;
    4. Use the Software only on as many computers or devices that You purchased, in such configurations permitted by a Reseller or Kognition, and/or in accordance with the applicable unit of measure, each as may be specified on Your Order. 
    5. Abide by the export control and economic sanctions laws of the United States, the European Union and other applicable jurisdictions. Under these laws, the Software must not be used, sold, leased, exported, imported, re-exported or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end user, end-use and end-destination restrictions, prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce Denied Persons List. You represent and warrant that You are not the subject or target of, and that You are not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea), that is the subject or target of economic sanctions of the United States, European Union or other applicable jurisdictions; 
    6. Comply with all applicable laws, rules and regulations while using the Software, including those relating the privacy and security of information regarding individuals; and
    7. Comply with all Third Party Terms (as defined in Section 5 below).

  1. Except as otherwise permitted by this EULA or by law, You must not, and must not allow Your Permitted Third Parties, to do the following:
    1. Modify or remove any proprietary notices or markings on or in the Software;
    2. Transfer License Keys to any other person or entity;
    3. Download Updates from Kognition or a Reseller provider unless You have a valid support agreement;
    4. Install and operate counterfeit versions of Software (i.e., software provided by anyone other than Kognition or Reseller);
    5. Violate or circumvent any technological use restrictions in the Software;
    6. Sell, loan, rent, lease, sublicense, distribute or encumber (e.g., by lien, security interest, etc.) the Software;
    7. Use any trademarks or service marks of Kognition, its affiliates or suppliers;
    8. Provide access to the Software or allow use by any third party, other than Permitted Third Parties, without Kognition’s prior written consent;
    9. Copy, republish, upload, post or transmit the Software in any way;
    10. Modify or create derivative works based upon the Software, or decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part;
    11. Attack or attempt to undermine the security, integrity, authentication or intended operation of the Software;
    12. Use the Software on a service bureau, rental or managed services basis;
    13. Create or permit others to create Internet “links” to the Software or “frame” or “mirror” the Software on any other server, wireless or Internet-based device; or
    14. Use the Software to create a competitive offering;

  1. Transferability. You may not transfer the Software to another person or entity without the express written permission of Kognition.

  1. Compliance Verification. You must: (a) maintain and use systems and procedures that allow You to accurately track Your use of the Software; (b) certify to Kognition in writing, at Kognition’s request, that Your use of Software fully complies with this EULA, indicating the number of Software licenses deployed at that time; and (c) cooperate fully and timely with Kognition, Reseller and their auditors if Kognition or Reseller notifies You that it will conduct an audit to confirm Your compliance with this EULA or Order. Any such audit will be conducted during normal business hours. If Kognition or Reseller determines that You have over-deployed Software, You agree to immediately purchase licenses at the then-current list price to bring Your use into compliance. If You over-deployed Software by 5% or more, then You agree to pay the total cost of the audit, in addition to any other liabilities You may have.

  1. Third Party Software. “Third Party Software” is software, including open source software, that is contained in or provided with the Software and is licensed by a third party under its own terms of use (“Third Party Terms”). Third Party Software is governed solely by the applicable Third Party Terms and not by this EULA. 

  1. Evaluation Software. This EULA does not license use of Software for evaluation purposes (“Evaluation Software”) except to the extent these terms may be invoked by the separate license terms and conditions accompanying that Evaluation Software.

  1. Support Services Not Included. If You purchase maintenance and support for Software, such services are identified in Your Order and will be provided under a separate services agreement.

  1. Termination. For Subscription Software, this EULA automatically terminates at the end of Your subscription period unless You renew Your rights. Kognition may terminate this EULA if You or a Permitted Third Party commits a material breach of this EULA and fails to cure such breach within thirty (30) days following Your receipt of notice of the breach from Kognition or Reseller. This right to terminate applies accordingly if Kognition or the Reseller from whom You made Your purchase does not receive timely payment for the licenses to the Software or for the hardware on which the Software is loaded, if any. When this EULA terminates, all licenses granted automatically terminate and You must immediately cease use of the Software and return or destroy all copies of the Software. Rights and obligations under Sections of this EULA that, by their nature should survive, will survive termination, as well as obligations for payment.

  1. Warranty Disclaimer. Under this EULA, Kognition provides neither any warranties for the Software nor does it provide support for the Software. Your rights under any warranties and any support entitlements for Software acquired for a fee are solely between You and the Reseller. Accordingly, the Software is provided by Kognition under this EULA “As Is” without any warranties or conditions. To the maximum extent permitted by applicable law, Kognition, on behalf of itself and its affiliates and suppliers: (a) makes no express warranties or conditions related to the Software; (b) disclaims all implied warranties and conditions related to the Software, including merchantability, fitness for a particular purpose, title, and non-infringement; and (c) disclaims any warranty or condition arising by statute, operation of law, course of dealing or performance, or usage of trade. Kognition does not warrant uninterrupted or error-free operation of the Software. 

  1. Limitation of Liability.

  1. Limitations on Damages. The limitations, exclusions and disclaimers set forth in your applicable agreement with your Reseller (in each case, the “Order Terms”) shall apply to all disputes, claims or controversies (whether in contract, tort or otherwise) between You and Kognition related to or arising out of: (a) this EULA; (b) the breach, termination or validity of this EULA; or (c) any Orders (each, a “Dispute”). In the absence of applicable Order Terms, the terms set forth in this Section shall apply to all Disputes.

The terms of this Section are agreed allocations of risk constituting part of the consideration for Kognition’s licensing of Software to You and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless of whether a party has been advised of the possibility of the liabilities. 

  1. Limitation on Direct Damages. Except for Your obligation to pay for the Software, or for Your violation of the License Grant and License Conditions set forth herein or of Kognition’s intellectual property rights, the total liability of You and Kognition (including Kognition’s affiliates and suppliers) arising out of any Dispute is limited to the amount You paid for the Software that is the subject of the Dispute, but excluding amounts received as reimbursement of expenses or payment of taxes. Notwithstanding anything otherwise set forth above, Kognition and its affiliates have no liability for any direct damages resulting from Your use or attempted use of Third Party Software.

  1. Disclaimer of Certain Other Damages. Except for Your obligation to pay for the Software, or for Your violation of the License Grant and License Conditions set forth herein or of Kognition’s or Kognition’s intellectual property rights, neither You nor Kognition (including Kognition’s affiliates and suppliers) shall have any liability under this EULA for special, consequential, exemplary, punitive, incidental or indirect damages, or for lost profits, loss of revenue, loss or corruption of data, loss of use or procurement of substitute products or services.

  1. Regular Backups. You are solely responsible for Your data. You must back up Your data before Kognition or a third party performs any remedial, upgrade or other work on Your production systems. You acknowledge that it is a best practice to have more than one back up copy of Your data. If applicable law prohibits exclusion of liability for lost data, then Kognition will only be liable for the cost of the typical effort to recover the lost data from Your last available back up.

  1. Additional Terms.

  1. Waiver and Severability. Failure to enforce a provision of this EULA will not constitute a waiver of that or any other provision of this EULA. If a court of competent jurisdiction determines that any part of this EULA or document that incorporates this EULA by reference is unenforceable, that ruling will not affect the validity of all remaining parts.

  1. Modifications. This EULA may only be modified in writing signed by both parties.

  1. Governing Law and Jurisdiction. If You obtained the Software from a Reseller, then the governing law and jurisdiction provisions set forth in Your Order Terms shall apply to this EULA. Otherwise the following shall apply: (A) this EULA and any Dispute is governed by the laws of the State of Delaware (excluding the conflicts of law rules) and the federal laws of the United States; and (B) to the extent permitted by law, the state and federal courts located in Delaware will have exclusive jurisdiction for any Dispute. Both parties agree to submit to the personal jurisdiction of the state and federal courts located within New Castle County, Delaware, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts.  For clarification, neither the U.N. Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act shall apply to this EULA or any Dispute.

  1. Third Party Rights. Other than as expressly set out in this EULA, this EULA does not create any rights for any person who is not a party to it, and no person who is not a party to this EULA may enforce any of its terms or rely on any exclusion or limitation contained in it.

  1. Entire Agreement. You acknowledge that You have read this EULA, that You understand it, that You agree to be bound by its terms, and that this EULA, along with the Order Terms into which this EULA may be incorporated (as applicable), is the complete and exclusive statement of the agreement between You and Kognition regarding Your use of the Software. You represent that You did not rely on any representations or statements that do not appear in this EULA when accepting this EULA.