CUIComply Terms of Service
1. Definitions.
"Account" means the online account registered by Licensee for purposes of accessing and using the Software. Licensee is responsible for anyone who obtains, accesses, or uses the Software through Licensee or Licensee"s Account (including any Authorized Users) and their compliance with these Terms. In certain cases, Authorized Users may be required to set up individual accounts or agree to separate terms in order to obtain, access, or use the Software, but Licensee remains responsible. Licensee agrees, on behalf of it and all Authorized Users, to secure and not share any user IDs or passwords (except with authorized account administrators). If Licensee suspects unauthorized use of its Account, please contact CUIComply using the contact information set forth herein. CUIComply retains the right to suspend or terminate any Account at any time in its sole discretion.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law, in equity, or otherwise. "Authorized Services" means any and all services performed for Licensee by any Reseller Partner (as applicable) or Authorized User, for Licensee in connection with authorized use of the Software or Documentation as expressly permitted under these Terms, including training, analysis, installation, configuration, integration, testing, deployment, support, or disaster recovery services, of or concerning the Software or Documentation.
"Authorized User" means Licensee and, as applicable, any employee or Authorized Subcontractor of Licensee who is designated by Licensee as authorized to use the Software, subject to any limitations on Authorized Users under these Terms or the License Order. Licensee is responsible for the acts and omissions of all Authorized Users, and for ensuring that all Authorized Users act in compliance with these Terms.
"Authorized Subcontractor" means a contractor of Licensee who (i) is subject to written obligations of confidentiality at least as protective of CUIComply's Confidential Information as these Terms, and (ii) who is not, and is not employed by, a competitor of CUIComply.
"Confidential Information" has the meaning set forth in 7.1.
"Disclosing Party" has the meaning set forth in 7.1.
"Documentation" means CUIComply's user manuals, handbooks, and installation guides relating to the Software in any form or media, that describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, testing, customization or use of the Software or any output of the Software.
"Effective Date" means the date Licensee indicates Licensee's assent to these Terms, whether by clicking that Licensee "accepts" or "agrees" to these Terms, registering an Account, submitting a License Order or otherwise accessing or using the Software or Documentation.
"Force Majeure Event" has the meaning set forth in Section 14.9(a).
"Harmful Code" means any: (a) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software; or (b) time bomb, drop-dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any Person, or otherwise deprive Licensee of its lawful right to use the Software.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise obtained now or hereafter under or related to any patent, industrial design, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. Intellectual Property Rights shall also include rights under statute or contract relating to the protection of confidential information, know how, data, personal identifying information, personal health information, or personal financial information.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"License Fee" has the meaning set forth in the applicable License Order. All License Fees are non-refundable, except as set forth in Section 12.3(a).
"License Order" means any purchased or free trial license order, purchase document, or any other instrument as determined by CUIComply, which may be completed online, in-product, offline or in any other form designated by CUIComply, by Licensee (or Reseller Partner, as applicable), and that sets forth the pricing, payment terms, license terms (or free trial terms, as applicable)) and other applicable business terms under which Licensee obtains rights to access or use the Software. The Parties hereby agree that the License Order is deemed to incorporate these Terms by reference.
"License Term" means the duration of the term of the rights and license granted hereunder, as set forth in the applicable License Order.
"Licensee Data" means all data, information, and other content of any type and in any format, medium, or form, whether audio, visual, digital, screen, or other, that is input, uploaded to, placed into, or collected, stored, processed, generated, or output by the Software by or on behalf of Licensee in connection with a use of the Software that is authorized under these Terms. Licensee Data does not, however, include the Software or data, information, or content, including any audio, visual, or digital or other display or output, that is generated automatically upon executing the Software without additional user input. Subject to applicable law, Licensee Data will be maintained by CUIComplay for 120 days post-termination unless otherwise instructed in writing by Licensee. The collection of any Licensee Data by CUIComply in connection with the Software is subject to any data and privacy policies maintained by CUIComply from time to time.
"Licensee Indemnitee" has the meaning set forth in Section 10.1.
"Losses" means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder.
"Maintenance Release" means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that CUIComply may generally provide to its licensees from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software.
"Open Source Components" means any software component that is subject to any open source license agreement, including software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
"Operating Environment" means Licensee's or any Authorized User's computer systems and software on which the Software is intended to be accessed and used, as may be set forth on the applicable License Order. For avoidance of doubt, Operating Environment shall include computer systems owned, rented, or leased by Licensee, and shall include virtual servers controlled or used by Licensee, including without limitation any virtual servers provided to Licensee by a third party cloud services provider. Operating Environment shall also include all operating system, database software, and utility software required for the operation of the Software including, without limitation, third party software such as SIEM, Access Management, EDR, Posture Management and other software products, whether or not such software operates on the same server as the Software.
"Permitted Use" means use of the Software and Documentation by any Authorized User for Licensee's internal business operations. Notwithstanding the foregoing, under no circumstances whatsoever shall Permitted Use include any reverse engineering, decompiling, modification, service bureau operation, or any use whatsoever in connection with design or creation of any product or service that competes with the Software, including but not limited to competitive intelligence.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"Receiving Party" has the meaning set forth in Section 7.1.
"Representatives" means, with respect to a Party, that Party's employees, officers, directors, managers, equityholders, advisors, agents and other representatives.
"Reseller Partner" means, as applicable, the CUIComply authorized reseller that completed a License Order in connection with Licensee's use of the Software as contemplated hereunder or under the License Order.
"Software" means all components of the version of the software product listed in the applicable License Order, including without limitation all correlation searches, dashboards, and utility files, together with any Maintenance Releases provided to Licensee pursuant to these Terms, and all copies of the foregoing permitted hereunder. For the avoidance of doubt, the Software may be offered as a SaaS offering and/or on-premises offering, provided, however that any on-premises version of the Software is subject to additional terms and conditions as provided by CUIComply from time to time.
"Software Defect" means a material deviation between the operation of the Software and the Documentation that is not the result of the configuration or operation of the Operating Environment, and that has not been addressed by a previously released Maintenance Release.
"Software Support" means assistance rendered by CUIComply to Licensee, as may be further set forth on our website or in the License Order, in the maintenance and operation of Licensee's authorized use of the Software, but in any event does not include implementation, configuration, or training services nor customized Software enhancement or configuration.
"Subscription Date" means the first day of the paid License Term, for any paid use of the Software, as set forth in the applicable License Order.
"Term" has the meaning set forth in Section 12.
"Territory" means the United States of America.
"Trial Commencement Date" means the first day of the Trial Term for the Trial Software, as set forth in the applicable License Order.
"Trial Term" has the meaning set forth in Section 2.3(b).
2. License.
2.1 License Grant. In return for, and subject to, timely payment of all License Fees set forth on the applicable License Order (provided however that no such License Fees shall be due and owing for access and use of the Trial Software), and Licensee's compliance with these Terms and the applicable License Order, CUIComply hereby grants to Licensee and any other Authorized Users, only during the License Term, a non-exclusive, royalty-free, non-transferable (except as set forth in Section 14.7), and non-sublicensable limited license to access and use the Software and Documentation for the Permitted Use in the Territory in accordance with, and subject to these Terms.
2.2 Scope of Licensed Access and Use. Pursuant to the limited license granted in Section 2.1 and in accordance with the terms and conditions thereof, Licensee may, and Licensee may permit each other Authorized User, to access and use the Software solely for or in connection with the Permitted Use.
2.3 License Terms.
(a) CUIComply currently offers the following License Terms: (i) a 1 year subscription, (ii) a 2 year subscription, and (iii) a month-to-month subscription. Any License Term for a 1 year or 2 year License Term will commence on the Subscription Date and automatically renew for successive periods of the same duration as the initial License Term, unless Licensee provides CUIComply with written notice of nonrenewal at least sixty (60) days prior to the end of the then current License Term. A month-to-month License Term will commence on the Subscription Date and will automatically terminate on the date that is thirty (30) days thereafter, provided, however, that the License Term shall renew for an additional period of thirty (30) days upon Licensee's payment of an invoice from CUIComply for a new 30 day License Term.
(b) CUIComply may offer, from time to time, the Software on a free, no-obligation trial basis for a limited duration and with limited functionality (the "Trial Software"). The term of the Trial Software is 14 days (which term may be extended in the sole discretion of CUIComply) (the "Trial Term"), unless terminated earlier by either Licensee or CUIComply, for any reason or for no reason. CUIComply reserves the right to modify, cancel and/or limit the Trial Software at any time, with or without notice, and without liability or explanation to you.
3. License Restrictions. Except as these Terms expressly permit, or as reasonably necessary to make any use of the Software permitted by Section 2.1, Section 2.2, or elsewhere in these Terms, Licensee shall not, and shall not permit others to:
(a) use the Software for any purpose whatsoever other than the Permitted Use;
(b) exceed any limit on Authorized Users, Operating Environments, Designated Sites, or other restrictions set forth on the applicable License Order;
(c) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of the Software or Documentation (notwithstanding the foregoing, it is understood and agreed that neither tuning of correlation searches nor using documented customization features of the Software shall not be deemed or treated as a violation of this Section 3 provided they are done only in connection with the Permitted Use and for no other purpose);
(d) bulk copy any correlation searches or other knowledge objects included in the Software for any purpose other than system backups made for disaster recovery purposes;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Software or Documentation available to any third party provided, however, that the foregoing shall not preclude License from (i) making the Software and Documentation available to Authorized Users as permitted under these Terms, (ii) utilizing the Software and Documentation on Operating Environments owned by Licensee's service providers provided that such Operating Environments are administered solely by Licensee, or (iii) making the Software and Documentation available to personnel of the applicable Reseller Partner (as applicable); or
(f) reverse engineer, disassemble, decompile, decode, or adapt the Software or Documentation, or otherwise attempt to derive or gain access to the Source Code of the Software, in whole or in part, except as and only to the extent this restriction is prohibited by applicable Law.
It is understood and agreed that any copying, publication, making of derivative works, or other uses of the Software or Documentation in violation of the foregoing restrictions shall be both a violation of these Terms and an infringement of CUIComply's Intellectual Property Rights.
4. Maintenance Releases. During the License Term, CUIComply reserves the right in its sole discretion to publish Maintenance Releases and add or remove functionality and features from time to time, each of which will constitute Software and be subject to these Terms.
5. Software Support; Security; Uptime.
(a) Software Support. CUIComply will use commercially reasonable efforts to provide reasonable Software Support to Licensee as required during the License Term as follows:
(i) Software Support is provided as part of the License Fee during the License Term.
(ii) CUIComply shall use commercially reasonable efforts to ensure Software Support is available between the hours of 9:00 AM and 5:00 PM Eastern Time, other than on Saturdays, Sundays, or federally-recognized U.S. holidays. In the event Licensee requests Software Support at any other time, CUIComply may, but is not required to, provide such after-hours Software Support. CUIComply reserves the right to charge for such after-hours Software Support on a time-and-materials basis, provided Licensee agrees to such charges in writing before after-hours Software Support is rendered.
(iii) Any request for Software Support will be made by Licensee via CUIComply's online customer portal. Each request for Software Support will be assigned a support ticket.
(iv) CUIComply will use commercially reasonable efforts to address each support ticket in a timely manner based on the severity of the underlying issue.
(v) In the event a support ticket is determined by CUIComply to result from a Software Defect, CUIComply will use commercially reasonable efforts to (i) recommend a commercially viable temporary workaround to enable continued use of the Software despite the Software Defect, and (ii) either remedy the Software Defect in the next upcoming Maintenance Release or provide a permanent workaround to Licensee.
(vi) CUIComply shall have no liability or responsibility for any issues caused by or support tickets submitted in connection with any (i) errors or defects related to the Operating Environment or otherwise attributable to Licensee or the Operating Environment, (ii) improper configuration or installation of any on-prem version of the Software (as applicable), or (iii) use of non-current versions of any software other than the Software, including without limitation the Operating Environment.
(vii) All Software Support is provided AS IS with no warranties whatsoever, express or implied.
(b) Security. The Software will be hosted in Amazon Web Services AWS GovCloud platform, which is presented by Amazon Web Services as having higher security and compliance standards than AWS Commercial Cloud, as further described in the AWS Service Terms located at https://aws.amazon.com/service-terms/. Notwithstanding the foregoing, while CUIComply uses commercially reasonable efforts to ensure the security of the Software, it makes no representations or warranties as to the products and services offered by Amazon Web Services or any other third party provider.
(c) Uptime. The Software will be available at least 99% of the time, 24 hours a day, 7 days a week (as measured by CUIComply's internal systems and tools). If CUIComply fails to comply with the foregoing, CUIComply shall, upon written notice from Licensee and at CUIComply's sole cost and expense, correct the Software, such correction being Licensee's sole remedy. The foregoing uptime commitment does not apply to downtime that results from scheduled maintenance (as reasonably noticed in advance), emergency maintenance as necessary to protect system integrity or security, outages caused by the Operating Environment, Force Majeure Events, and suspension or termination of Licensee's and any other Authorized User's access to and use of the Software in accordance with these Terms.
6. Fees and Payment.
6.1 License Fees. Licensee shall pay CUIComply the License Fees in accordance with the payment terms set forth in the License Order. All fees and other amounts payable by Licensee under these Terms are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on CUIComply's income. Notwithstanding the foregoing, CUIComply may from time to time offer its software licenses through Reseller Partners, which collect Licensee Fees and remit them to CUIComply. In such case, the rights and license granted to Licensee in these Terms are in return for, and contingent upon, the applicable Reseller Partner paying applicable amounts to CUIComply, as set forth in their Reseller Agreement.
6.2 Suspension. Without prejudice to any other right or remedy it may have, CUIComply may, without liability of any kind, suspend operation of, or access to, the Software in the event of overdue, or incomplete payment of any fees owed to it by Licensee or any Reseller Partner (as applicable) in connection with these Terms, such suspension to be maintained until such time as any payment disputes have been fully and finally resolved, as determined in the sole discretion of CUIComply.
7. Confidentiality.
7.1 Confidential Information. In connection with these Terms, each Party (the "Disclosing Party") may disclose or make available Confidential Information to the other Party (the "Receiving Party"). Subject to Section 7.2, "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as "confidential." Without limiting the foregoing, Licensee Data is the Confidential Information of Licensee, and the Software, Documentation, release plans, development plans, and any security vulnerabilities or bugs relating to the Software, are CUIComply's Confidential Information. For the avoidance of doubt, it is understood that CUIComply Confidential Information may include Confidential Information received directly from CUIComply and/or Confidential Information received from a Reseller Partner.
7.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available in connection with these Terms; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' non-compliance with these Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.
7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) except as may be permitted by and subject to its compliance with Section 7.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with these Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 7.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7.3;
(b) in the case of Licensee, not use (or allow any third party to use) the Confidential Information of CUIComply for any purpose other than to use the Software for the Permitted Purpose, and receive Authorized Services, as expressly permitted in these Terms, and, in the case of CUIComply, not use (or allow any third party to use) the Confidential Information of Licensee for any purpose other than to support, maintain, troubleshoot, and improve the Software and Documentation;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Representatives' compliance with, and be responsible and liable for, any of its Representatives' noncompliance with, the terms of this Section 7. The Receiving Party shall be responsible for any violation, breach of or non-compliance with this Section 7 by any of its Representatives.
The nondisclosure and non-use obligations in this Section 7.3 shall commence on the Effective Date and, in the case of trade secrets, continue until such time as the applicable Confidential Information no longer meets the definition of a trade secret under applicable law (but in no event less than five (5) years after the end of License Term), and in the case of all other Confidential Information, five (5) years after the end of the License Term.
7.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy, or waive its rights under Section 7.3 for the limited purpose of the compelled disclosure; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose, and, upon the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
8. Intellectual Property Rights.
8.1 Ownership Rights in Software.
(a) Subject to the express rights and licenses granted by CUIComply in these Terms: (i) CUIComply and its licensors reserve and retain any and all right, title, and interest in and to all Intellectual Property Rights arising out of or relating to the Software, Documentation and CUIComply Confidential Information; and (ii) none of the Licensee or any Authorized Users shall acquire any of Intellectual Property Rights in or to the Software, Documentation or CUIComply Confidential Information whatsoever as a result of these Terms.
(b) Subject to the express rights and licenses granted by Licensee as described in these Terms: As between Licensee, on the one hand, and CUIComply and its licensors, on the other hand, Licensee reserves and retains, any and all right, title, and interest in and to the Licensee Data and Licensee's Confidential Information. Neither CUIComply nor any third party, by virtue of these Terms, shall: (i) have, acquire, or claim any right, title, or interest in or to any Licensee Data or Confidential Information of Licensee; or (ii) have any right or license to, and shall not, use any Licensee Data except solely as and to the extent reasonably necessary to perform hereunder.
8.2 Rights in Open Source Components. Ownership of all Intellectual Property Rights in Open Source Components remains with the respective owners thereof, subject to Licensee's rights under the applicable Open Source Licenses separately entered into by Licensee.
9. Representations and Warranties.
9.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(a) to the extent such Party is a corporation or other entity, it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, capacity and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, these Terms;
(c) to the extent such Party is a corporation or other entity, the acceptance of these Terms by its representative has been duly authorized by all necessary corporate or organizational action of such Party; and
(d) when duly accepted and delivered by both Parties, these Terms will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9.2 Additional CUIComply Representations and Warranties. CUIComply further warrants that:
(a) to its knowledge, neither its grant of the license, nor the Software or any other performance by or on behalf of CUIComply under these Terms does or will at any time infringe, misappropriate, or otherwise violate any U.S. patent, copyright, or trade secret; and
(b) the Software and all Maintenance Releases will be scanned for Harmful Code using commercially accepted malware scanning products (as determined in the sole discretion of CUIComply).
9.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 9.1 AND 9.2 OF THESE TERMS, THE SOFTWARE IS PROVIDED "AS IS" AND CUICOMPLY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT OR THE APPLICABLE LICENSE ORDER, OR ANY SUBJECT MATTER HEREOF OF THEREOF, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CUICOMPLY MAKES NO WARRANTY OF ANY KIND THAT ANY SERVICES OR ANY PRODUCTS OF CUICOMPLY, INCLUDING WITHOUT LIMITATION THE SOFTWARE, OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEES OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. CUICOMPLY ALSO DOES NOT WARRANT THAT ANY REPORT OR OUTPUT OF THE SOFTWARE WILL COMPLY WITH ANY LAW GOVERNMENT REGULATION.
10. Indemnification.
10.1 CUIComply Indemnification. CUIComply shall indemnify, defend, and hold harmless Licensee and its officers, directors, employees, agents, permitted successors and permitted assigns (each, a "Licensee Indemnitee") from and against any and all Losses incurred by the Licensee Indemnitee resulting from any Action by a third party (other than an another Licensee Indemnitee or a Reseller Partner):
(a) that the Software or Documentation, or any use of the Software or Documentation in accordance with these Terms, infringes or misappropriates such third party's U.S. patents, copyrights, or trade secrets; or
(b) any gross negligence or more culpable act or omission (including recklessness or willful misconduct) by CUIComply or its employees in connection with any activity required of, or performed by or on behalf of, CUIComply or any CUIComply contractor under these Terms.
10.2 Indemnification Procedure. Licensee shall promptly notify CUIComply in writing of any Action for which Licensee believes it is entitled to be indemnified pursuant to Section 10.1 and cooperate with CUIComply at CUIComply's sole cost and expense. CUIComply shall promptly assume control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at CUIComply's sole cost and expense. Licensee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. CUIComply shall have sole discretion and authority to settle any Action in any manner, provided that such settlement does not include an admission of wrongdoing by Licensee. Licensee's failure to perform any obligations under this Section 10.2 will not relieve CUIComply of its obligations under this Section 10 except to the extent that CUIComply can demonstrate that it has been prejudiced as a result of such failure.
10.3 Mitigation.
(a) If the Software or any component thereof, is or in CUIComply's opinion is likely to be claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Licensee's or any Authorized User's use of any Software or any component thereof is enjoined or threatened to be enjoined, CUIComply shall, at CUIComply's sole cost and expense, and as Licensee's sole and exclusive remedy:
(i) obtain the right for Licensee and any other Authorized User (as applicable) to continue to use such Software as contemplated by these Terms; or
(ii) modify or replace the materials that infringe or are alleged to infringe ("Allegedly Infringing Materials") to make the Software and all of its components (as so modified or replaced) non-infringing while providing materially equivalent features and functionality; or
(b) if, in CUIComply's judgment, neither of the foregoing ((a)(i) or (a)(ii)) is possible notwithstanding CUIComply's reasonable efforts, then CUIComply may, by written notice to Licensee, direct all Licensee Indemnitees to cease any and all use of Allegedly Infringing materials provided that CUIComply shall refund or credit to Licensee a pro rata portion of all amounts paid by Licensee in respect of such Allegedly Infringing Materials proportionate with the extent to and period during which Licensee's exercise of its rights under these Terms respecting the Allegedly Infringing Materials have been and will be materially impaired
(c) The remedies set forth in Sections 10.3(a) and 10.3(b), such refund and continued indemnification being Licensee's sole and exclusive remedy in connection with any Action arising under Section 10.1(a) above.
11. Limitations of Liability.
11.1 EXCLUSION OF INDIRECT DAMAGES. IN NO EVENT WILL CUICOMPLY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND.
11.2 CAP ON MONETARY LIABILITY. SUBJEC TO SECTION 11.3, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF EITHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AGGREGATE AMOUNTS RECEVIED BY, OR OWED TO, CUICOMPLY IN CONNECTION WITH THE APPLICABLE LICENSE ORDER DURING THE TWELVE MONTHS PRECEEDING THE DATE ON WHICH THE CLAIM AROSE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.3 Exceptions. The exclusions and limitations in Section 11.1 and Section 11.2 do not apply to:
(a) Losses arising out of or relating to a Party's failure to comply with its obligations under Section 3 (License Restrictions), Section 7 (Confidentiality) or Section 8 (Intellectual Property Rights).
(b) A Party's indemnification obligations under Section 10 (Indemnification).
(c) Losses arising out of or relating to a Party's gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts.
(d) Losses for death, bodily injury, or damage to real or tangible personal property.
12. Term and Termination.
12.1 Term. The term of these Terms ("Term") is the period of time commencing on the Effective Date and continuing in effect until thirty (30) days after the expiration of all License Terms (subject to Section 12.4), unless terminated earlier pursuant to any of its express provisions.
12.2 Termination.
(a) Licensee may terminate, at any time without cause and without incurring any obligation, liability or penalty by reason of such termination these Terms (subject to Section 12.4) and the rights and license granted by CUIComply hereunder by providing at least 30 days prior written notice to CUIComply. Termination in accordance to this provision shall not, however, entitle Licensee to any refund or relieve Licensee from its obligation to pay all License Fees due for the entire License Term.
(b) Either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially violates these Terms, and such violation: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-violating Party provides the violating Party with written notice of such violation.
(c) Either Party may terminate these Terms, effective immediately, if the other Party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (iii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
12.3 Effect of Expiration or Termination.
(a) In the event of a termination due to CUIComply's uncured violation, CUIComply shall refund to Licensee a pro rata share of all pre-paid License Fees applicable to any period of time after the effective date of termination, and Licensee shall not be required to pay any further License Fees that would otherwise become due and payable after the effective date of termination. In the event of termination for any other reason, there will be no refunds.
(b) In the event of termination for any reason, Licensee (and all other Authorized Users, as applicable) shall immediately cease all use of the Software and Documentation, and return all CUIComply Confidential Information to CUIComply.
(c) Termination of these Terms for any reason shall not relieve Licensee from its obligation to pay all License Fees due for the entire License Term.
12.4 Survival. The provisions set forth in the following sections, and any other right or obligation of the Parties in these Terms that, by its nature, should survive termination or expiration of these Terms, will survive any expiration or termination of these Terms: 1, 3, 6-8, 9.3, 10-14.
13. MANDATORY ARBITRATION AND CLASS ACTION WAIVER. READ THIS SECTION CAREFULLY; IT AFFECTS LICENSEE'S LEGAL RIGHTS, INCLUDING LICENSEE'S RIGHT TO FILE A LAWSUIT IN COURT.
13.1 In the event of any dispute arising out of or relating to these Terms (including any License Order), the Parties shall first endeavor to resolve amicably in good faith. If the dispute remains unresolved 30 days after either Party requests in writing negotiation under this clause or within such other period as the Parties may agree in writing, the dispute shall then be resolved by final and binding arbitration before one arbitrator selected by CUIComply.
13.2 The arbitration shall be administered in Tampa, Florida in accordance with the Judicial Arbitration and Mediation Services, Inc. ("JAMS") Streamlined Arbitration Procedure Rules for Actions that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for Actions exceeding $250,000, in effect at the time the arbitration is initiated, excluding rules or procedures governing or permitting class actions.
13.3 The arbitrator shall award to the prevailing Party, if any, costs and attorneys' fees reasonably incurred by the prevailing Party in connection with the arbitration. If a Party prevails on some but not all of the claims and counterclaims, the arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing Party in connection with the arbitration. Judgment on the award rendered by the arbitrator may be entered in a court located in Tampa, Florida
13.4 Licensee agrees that the arbitration shall be conducted in Licensee's individual capacity only and not as a class action or other representative action, and Licensee expressly waives Licensee's right to file a class action or seek relief on a class basis. LICENSEE AGREES THAT LICENSEE MAY BRING CLAIMS AGAINST CUICOMPLY ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. LICENSEE WILL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUICOMPLY CUSTOMERS OR USERS IN COURT OR IN ARBITRATION. Licensee cannot seek relief that will affect other CUIComply customers or users. The arbitrator has no power to consider the enforceability of this class action waiver.
14. Miscellaneous.
14.1 Further Assurances. On a Party's reasonable request, the other Party shall, at the requesting Party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to these Terms.
14.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No use of the words "Partner" or "Partnership" shall be construed to imply or create any relationship other than a relationship of independent contractors.
14.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under these Terms have binding legal effect only if in writing (including via email) and addressed to a Party as follows (or to such other address or such other person that such Party may designate from time to time in accordance with this Section 14.3).
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If to CUICOMPLY: |
13577 Feather Sound Drive, Suite 420, Clearwater, FL 33762 Email: [email protected] |
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If to Licensee: |
At the notice address and/or email set forth in the License Order or otherwise on file with CUIComply. |
Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required, with a delivery confirmation; (c) when sent by email, only when the receiving Party sends a confirmation of receipt, and (d) on the tenth day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
14.4 Interpretation. For purposes of these Terms, (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to these Terms as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms: (x) to sections, exhibits, attachments, and appendices mean the sections of, and exhibits, attachments, and appendices attached to, these Terms; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend these Terms to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Any exhibits, attachments, and appendices referred to herein are an integral part of these Terms to the same extent as if they were set forth verbatim herein.
14.5 Headings. The headings in these Terms are for reference only and do not affect the interpretation of these Terms.
14.6 Entire Agreement. These Terms, together with any exhibits, schedules or attachments hereto, and the License Order, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict or inconsistency between the terms of these Terms (including any exhibits, schedules or attachments hereto) and the terms of the License Order, the terms of these Terms shall prevail unless expressly stated otherwise in the License Order. In the event of any conflict or inconsistency between the terms of the body of these Terms and the terms of the exhibits, schedules and attachments to these Terms, the terms of the exhibits, schedules and attachments shall apply.
14.7 Assignment.
(a) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without CUIComply's prior written consent, which consent shall not unreasonably be withheld or delayed; except that Licensee shall have the right, without CUIComply's consent, to assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms in connection with any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity), or a sale of all or substantially all of Licensee's business or assets relating to these Terms to an unaffiliated third party of good financial standing provided that such successor or unaffiliated third party purchaser agrees to assume Licensee's obligations hereunder. No assignment hereof shall relieve the assignee of its obligations hereunder.
(b) Any purported assignment, delegation, or transfer in violation of this Section 14.7 is void.
(c) These Terms are binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
14.8 Export Regulation. Licensee shall not itself, or permit any third parties to, export, re-export, or release, directly or indirectly, any Software to any country or jurisdiction to which the export, re-export, or release of any Software (a) is prohibited by applicable Law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).
14.9 Force Majeure.
(a) Force Majeure Events. In no event shall either Party be liable or responsible to the other Party, or be deemed to have defaulted under or violated these Terms, for any failure or delay in fulfilling or performing any term of these Terms (other than any payment obligations hereunder) when and to the extent such failure or delay is caused by any of the following circumstances beyond such Party's reasonable control (each a "Force Majeure Event"): (i) acts of God; (ii) flood, fire, earthquake, hurricane, tornado, wind damage, flood, pandemic, epidemic or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of these Terms; and (vi) national or regional emergency. Either Party may terminate these Terms if a Force Majeure Event affecting it continues substantially uninterrupted for a period of 30 days or more.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt notice to the other Party, stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
14.10 No Third-Party Beneficiaries. These Terms are for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms.
14.11 Amendment and Modification; Waiver. These Terms may be updated from time to time upon reasonable notice to Licensee. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.12 Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.13 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. These Terms and any disputes relating to, arising out of or in connection with these Terms is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE LICENSE ORDER OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
14.14 Equitable Relief. Each Party acknowledges and agrees that a violation or threatened violation by such Party of any of its obligations under Section 7 or Section 8 would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such violation or threatened violation, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.