This End User License and Services Agreement (“Agreement”) is entered into by and among Kondukto Inc. (“Licensor”) and Customer as defined on the Order Form referencing this Agreement and relating to Software. Licensor and Customer are hereinafter collectively referred to as the “Parties” and individually as a “Party”.
This Agreement grants a license to use the Software under the terms and conditions stated herein and the Customer is deemed to agree to be bound by these terms and conditions by installing and/or using the Software.
1.1 For the purpose of this Agreement, the terms used in this Agreement have the meanings given to them below.
”Affiliate”means, with respect to a Party, an entity that is controlled by such Party. With respect to an entity, control means the ability, whether by ownership of equity interests, voting rights, contract, or otherwise, to direct the management, policy, or affairs of such entity. An entity will be considered as an Affiliate only for such time as such control is maintained.
“Application”means a computer software application under management by the Software. The number of authorized Applications and installations shall be defined by the applicable Order Form(s).
“Documentation”means Licensor’s documentation for the Software, in any medium, including that which is currently published and delivered to Customer by Licensor under this Agreement, which describes the content and functionality of the Software and how to use the Software.
“Including”means “including but not limited to” (whether or not capitalized).
“Intellectual Property Rights”means all trademark, trade dress, copyright, patent, trade secret, and other intellectual property rights, and all rights to protect the foregoing worldwide.
“License Fee”means the fee to be paid for the license stated in the applicable Order Form.
“License Term”means the term of license stated in the applicable Order Form.
“Order Form”means a form, whether electronic or written, provided by Licensor to Customer; specifying, as applicable, the quantity of Software ordered, the entity of the Customer, the License Fee, and the License Term and the scope of Services included, if any; and mutually agreed to and entered into by Licensor and Customer.
“Recommended Application Server”means the system requirements regarding the server stated in the Documentation which may be updated by Licensor from time to time.
“Recommended Database”means the system requirements regarding the database stated in the Documentation which may be updated by Licensor from time to time.
“Recommended Hardware”means the system requirements regarding the hardware contained at stated in the Documentation which may be updated by Licensor from time to time.
“Representative”means a director, officer, employee, or agent of a Party.
“Services”means installation, deliverables, training, or other professional services provided by Licensor to Customer under this Agreement to the extent included in an Order Form. Services are separate from and exclude Support.
“Software”means the program derived from the Source Code to perform the tasks of automation and centralization of the vulnerability management process.
“Source Code”means all necessary instructions, tools, documents, computer programs or code in human readable language from which machine readable, executable code can be derived.
“Support”means the support set forth in Clause 3.4.
“Use”means to activate the processing capabilities of the Software, or to load, install, configure, execute, access, or employ the Software, or display information using the processing capabilities of the Software.
“Version”means each issuance of the Software generally available through Support that does not involve a significant change in functionality over a previous issuance of the Software, excluding third party software whether licensed through Licensor or not, which may or may not be identified by a numeric identifier to the right of a decimal point.
1.2 The headings used in this Agreement are for convenience of reference only and shall not be used to interpret the provisions of this Agreement.
1.3 The applicable Order Form(s) are deemed to be incorporated herein by reference and constitute an essential and integral part of this Agreement with value and force binding on the Parties and their respective assignees and successors.
2.1License to Use.Subject to the terms and conditions of this Agreement and the relevant Order Form(s), Licensor hereby grants Customer a limited, non-exclusive, non-transferrable license to Use one installation of an executable Versions of the Software on the Recommended Hardware with the Recommended Database and the Recommended Application Server for the Customer’s internal business purposes only in the Territory during the License Term for monitoring security issues associated with the number of software Applications stated in the applicable Order Form(s). The license granted herein is only for Use of Customer and does not extend to any other individuals or entities, except for Affiliates of Customer as expressly authorized in this Agreement. Workers of the Customer may Use the Software only on behalf of Customer and subject to the same restrictions and conditions as Customers. Any other Use of Software by Affiliates and workers of Customer is strictly prohibited. Customer shall be liable for non-compliance with this Agreement by its Affiliates and workers, including non-compliance with the number of authorized Applications and installations.
2.2No right to transfer.Customer has no right to transfer or assign its rights and obligations under this Agreement without prior explicit consent of Licensor in writing. Any assignment and/or transfer without such consent shall be null and void.
2.3No right to copy.Customer shall have no right to copy or reproduce or distribute Licensor’s Software and Documentation except as expressly authorized herein.
2.4Reservation of IP rights.Except as otherwise agreed in this Agreement or separately in writing, no express or implied license or right of any kind is granted to Customer regarding the Licensor’s Software. Licensor shall retain title to Software and Documentation as well as any Intellectual Property Rights therein.
2.5User access verification.Customer understands and agrees that Use of Software as authorized herein may be subject to certain activation keys, passwords or other protections issued or controlled by Licensor. Customer shall not disable, tamper with, or seek to circumvent any such protections. In addition to any other remedy that may be available under this Agreement and/or laws, Licensor shall have the right to suspend or prevent Customer’s access to and Use of the Software if Customer fails to abide by the terms and conditions hereof.
2.6Recommended Products.Customer understands that Use of the Software as authorized herein requires the Recommended Hardware, Recommended Database and Recommended Application Server as set forth herein. Customer further understands that the Recommended Hardware, Recommended Database and Recommended Application Server are third party products that are not included herein, and Customer bears the sole responsibility for the procurement, installation, operation, and maintenance of such third party products, including any and all costs associated therewith.
2.7Third Party hosting.Customer may have a third party host the Software on behalf of Customer, provided that such third party fully complies with the terms and conditions of this Agreement. Such third party shall not have any right to Use the Software except to the extent reasonably necessary to facilitate Customer’s Use of the Software in accordance with this Agreement. Customer shall be responsible for any failure by such third party to comply with any of the terms and conditions of this Agreement. Parties agree that any such hosting and any losses or damages in connection therewith, including without any limitation any loss or corruption of data, will be at Customer’s sole risk and expense. Licensor shall have no responsibility or liability whatsoever for such hosting or any action or omission by such third party.
2.8Right to audit.Licensor shall be entitled to audit the usage of the Software and Documentation by Customer to verify compliance with this Agreement and laws, provided that such audit must be during Customer’s regular business hours and upon reasonable prior notice to Customer.
3.1Inclusion of Services.Services are not included in this Agreement, unless it is specified in the Order Form. An Order Form that includes the provision of Services will also state a set number of services hours to be used by Customers and other terms in relation to Service to be provided by Licensor.
3.2Service related IP Rights.Subject to the terms and conditions of this Agreement, Licensor shall develop or provide the Customer with services as specified in the Order Form and agreed by Licensor. Title and ownership of all services including inventions, know-how, trade secrets, discoveries, formulas, improvements, ideas, writings, computer programs, systems, data, expressions, patents, trademarks, copyrights and all other intellectual property shall be the property of the Customer, provided, however that Customer hereby grants Licensor a perpetual, royalty-free license to copy, modify, transfer, market and otherwise benefit from the products and services as deemed appropriate by the Licensor, provided that Customer shall not be identified in connection with Licensor’s Use of the products and services. Nothing foregoing in the forgoing applies to the Software, tools and proprietary items of the Licensor that were in existence on or prior to the date of this Agreement and that are not specifically created by Licensor as Services for Customer under a written agreement.
3.3Acceptance of Services.Customer shall have 7 days following the provision of Services by Licensor to notify the Licensor that Services fail to comply with this Agreement and/or the Order Form and/or the applicable written agreement. Otherwise, the products and/or services will be deemed to have been accepted by the Customer as it is.
3.4Support.Support will be only available to the Customer online via ticket system. Support will be provided only on weekdays from 09:00 am to 06:00 pm (GMT+3). The Licensor will provide the Customer with all documentation, whitepaper, video etc. The Customer will be entitled to make unlimited numbers of Support request during the License Term. Support requests shall be submitted to the Licensor through the corporate e-mail address of the Customer. Support staff can establish a remote connection, if needed. Secure remote connection tools shall be used for remote connection. In the absence of secure remote connection tools, the Customer shall provide the required infrastructure for remote connection. The Licensor will be not liable in case the Customer cannot establish a remote connection. If on-site support is required for Support, installation, training or setup related to the Software, Licensor may use its own staff and or a partner firm staff having a competence level.
4.1Authority of Licensor.Licensor hereby warrants and represents that it owns or has sufficient right from its licensors in the Software and Documentation as are necessary to grant the license herein to Customers in accordance with the terms of this Agreement.
4.2Performance of Software.Licensor hereby warrants that the Software will materially conform to the Documentation during the License Term when used without alteration to the Source Code of the Software and in accordance with the Documentation on Recommended Hardware and terms of this Agreement. However, Licensor does not warrant that the Software will work uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance, or that the Software will meet all of Customer’s business requirements.
4.3Provision of Services.In the event that Services are included in the applicable Order Form, Licensor hereby warrants it will perform the Services in a professional manner and in accordance with the description stated in the Order Form and/or in the written agreement related to the Services.
4.4Disclaimer.All warranties of Licensor are limited only to those set forth in this Clause 4. Licensor disclaims all other representations and/or warranties of any kind, whether express, implied, statutory or otherwise, including the warranties of merchantability, fitness for a particular purpose, title and non-infringement in relation to the Software and Services set forth in this Agreement, to the fullest extent allowed by applicable law.
4.5Authority of Customer.Customer hereby represents and warrants that it has the right to form its obligations under this Agreement and it will not Use the Software or Documentation for any unlawful or offensive purpose.
5.1Indemnification.Licensor shall indemnify, Customer, its Affiliate, and each of their officers, directors, employees and agents against all expenses, claims, demands, causes of actions, liabilities, losses, judgments, awards, lawsuits, arbitrations or other litigation and costs, including official attorney fees, reasonably incurred in the defense of any claim brought by any third party alleging that Customer’s use of the Software or Documentations infringes upon or misappropriates any intellectual property right of any third party in the Territory. However, such indemnity shall not apply in and to the extent the alleged infringement or misappropriation results from Use of the Software in conjunction with any other software, an apparatus other than Recommended Hardware, a database other than Recommended Database, an application server other than the Recommended Application Server, an alteration of the Software, or unlicensed activities. In case of such claim, Customer shall notify Licensor in writing and Licensor shall be entitled to control fully the defense against such claim and any settlement of such claim, provided such settlement do not include a financial obligation or admission of liability on Customer or any indemnified person mentioned in this Clause 5.2, and provided that any failure and/or delay in providing such notice shall not relieve Licensor of its duty to indemnify hereunder except to the extent Licensor is materially prejudiced by such failure or delay. Customer shall corporate in the defense of such claim and may appear its own expense through its own counsel. Licensor may settle any claim provided that Licensor shall substitute for the Software and Documentation alternative substantially equivalent non-infringing programs and supporting documentation. Customer shall not undertake any legal action in response to any infringement or alleged infringement of the Software or Documentation without the written consent of Licensor.
5.2Remedy for Infringements.In the event of any claim by any third party alleging that Customer’s Use of the Software or Documentation infringes or misappropriates any Intellectual Property Right, and such claim results in an order for interim measures that restrains Customer’s Use of the Software and Documentation, Licensor shall at its own option (I) secure for Customer the lawful right to continue Use of the Software and Documentation at no additional charge to Customer (ii) modify the Software and Documentation so as not to infringe or misappropriate any rights of such third party and yet maintain substantially the same functionality; (iii) substitute the infringing Software and Documentation with alternative equivalent software and supporting documentation; or (iv) if none of the foregoing options is reasonably possible on a commercially reasonable basis, terminate this Agreement and refund to Customer the License Fee paid to Licensor on a pro-rata basis for the remaining portion of the then current License Term. Licensor may perform any of the foregoing options in its free discretion if the Software or Documentation becomes, or Licensor reasonably believes the Software or Documentation will become, subject to such a claim of infringement or misappropriation.
5.3Remedy for Services.Customer’s exclusive remedy with respect to any Services (including, without limitation, any related deliverables) performed hereunder is, at Licensor’s option, either to have it correct such Services at its sole cost and expense or to receive a refund of the portion of the license fee attributable to such Services, if any.
5.4No other remedy.The provisions of this Clause 5 state the sole, exclusive, and entire liability of Licensor and its licensors to Customer, and are Customer’s sole remedy, with respect to the infringement or misappropriation of third-Party intellectual property rights.
6.1Remedies for Software.Except as provided in Clause 5.1 and 5.2 above, Customer’s sole and exclusive remedies for any damages or losses in any way in connection with the performance of the Software and Support under this Agreement shall be for Licensor (i) to bring the performance of the Software into material compliance with the Documentation, (ii) to re-perform the Support, (iii) if the aforementioned remedies are not possible on an commercially reasonable basis, to return to Customer an appropriate pro-rata portion of the License Fee paid by Customer to Licensor for the remaining License Term with respect to the applicable portion of the Software and Support.
6.2Remedies for Documentation.Except as provided in Clause 5.1 and 5.2 above, Customer’s sole and exclusive remedies for any damages or losses in any way connected with the Documentation furnished by Licensor under this Agreement shall be for Licensor to: (i) correct any material inaccuracy of the Documentation, or (ii) deliver to Customer any Documentation for the Software licensed under this Agreement that was not previously delivered to Customer.
6.3No Liability.Licensor will not be responsible under this Agreement if and to the extent (i) the Software is not used in accordance with the Documentation, or (ii) a defect in the Software is caused by Customer, a third party, an alteration of the Software, or any third-Party software or database not prescribed in the Documentation. Licensor and its licensors shall not be liable for any claims or damages arising from inherently dangerous use of the Software and/or any third-party software licensed hereunder.
6.4Liability Limitations.Licensor shall be not liable hereunder for any incidental, indirect, special, or consequential damages, whether such damages arise in contract, tort (including negligence) or otherwise, including but not limited to lost profits or revenues, business interruption, work stoppage, overhead costs, data loss, computer failure or malfunction, exemplary or punitive damages, and damages arising out of commitments to subcontractors or personal service contracts, even if Licensor has been apprised of the possibility of such damages. The total cumulative liability of Licensor, if any, arising out of this Agreement, whether arising in contract, tort (including negligence) or otherwise, shall be limited to an amount equal to the License Fee received by Licensor from Customer under this Agreement and the applicable Order Form(s) during the one year period immediately preceding the date the cause of action arose.
7.1Expiration of License Term.Unless earlier terminated, this Agreement shall terminate upon expiration of the License Term without any additional notification.
7.2Termination for Breach.Either Party may terminate this Agreement by delivering written notice of termination to the other Party in accordance with the provisions of Clause 16 if the other Party fails to cure any breach of this Agreement within 30 days after receiving written notice of such breach; provided, however, that Licensor may terminate this Agreement immediately upon notice to Customer if Customer breaches its confidentiality obligations under this Agreement or otherwise commits a breach that is not curable.
7.3Effect of Termination.Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of the Software, Documentation, and the Confidential Information of Licensor, and Customer will promptly and permanently delete all electronic copies, and return to Licensor or destroy, at Licensor’s option, all tangible copies, of the Software, Documentation, and Confidential Information then in Customer’s possession and shall certify the same in writing to Licensor within 10 days after such expiration or termination. In the event of any termination hereunder, Customer shall not be entitled to any refund of any payments made by Customer.
8.1 Any legal, financial, operational, technical, accounting and commercial information including projects, content, drawings, diagrams, specifications, customer and supplier lists, inventions, trade secrets, business and technical “know how,” processes, formulas, procedures, technology, strategies, data processing procedures, plans, copyrights, trademark, patent and industrial rights, computer and automation software of the Parties as well as any information relating to this Agreement including the terms and conditions of this Agreement and the pricing contained herein, which shall be kept confidential under this Agreement and shall not be disclosed to third parties, unless otherwise stated herein, and any information confidentiality of which explicitly stated by the disclosed Party as well as any information related to this Agreement shall be deemed to be confidential information (“Confidential Information”).
8.2 The below-mentioned information shall not be deemed to be Confidential Information within the scope of this Agreement:
(i)Any information of a Party disclosed to the public without any fault attributable to the other Party;
(ii)Any information disclosed by a Party explicitly indicating in writing that such information is not classified as Confidential Information;
(iii)Any information of a Party obtained by the other Party from a third party who has a right to disclose the same;
(iv)Any information required to be disclosed under the legislation in force.
8.3 The Parties hereby accept, declare and warrant, without any limitation on time, that:
(i)They shall keep the Confidential Information and this Agreement strictly confidential by using a reasonable degree of care, but not less than the degree of care used by them safeguarding their own confidential information;
(ii)They shall not disclose the Confidential Information to third parties other than their Representatives who have a need to know such Confidential Information in connection with the current or contemplated business relationship between the Parties;
(iii)They shall not use and ensure that no other person will use, whether partially or wholly, the Confidential Information, for any reason whatsoever, unless otherwise authorized in writing by the other Party in advance;
(iv)They shall ensure that their Representatives will also adhere to the obligations stipulated hereunder.
8.4 Under any circumstances, disclosure of the Confidential Information shall not be deemed to grant of any right or license, either expressly or impliedly, on the Confidential Information. Title to Confidential Information will remain solely in the disclosed Party.
8.5 (Upon earlier of) completion or termination of the business relationship between the Parties for any reason whatsoever, or at such time as the disclosed Party may so request, the Parties shall immediately return and redeliver any and all tangible and intangible materials embodying the Confidential Information provided hereunder and all copies of any of the foregoing, including those that have been converted to computerized media as image, data or in writing, either manually or by image capture, based on or including any Confidential Information.
8.6 The relevant Party shall immediately notify the other Party upon discovery of any unauthorized use or disclosure of Confidential Information and cooperate with the other Party to prevent its further unauthorized use. In case of a breach of this Agreement by a Party or its employees or Representatives, the breaching Party shall pay a penalty of five (5) times the License Fee to the other Party. In case direct or indirect losses and damages suffered by the Party, whose Confidential Information is breached, exceed the amount of such penalty, the exceeding amount shall also be compensated.
8.7 The Licensor shall have the right to make public general references to Customer and to publicly disclose by name, in each other’s promotional materials and elsewhere, that Licensor is providing Customer with the type of product or services provided hereunder; provided that, prior to any such disclosure, the Licensor shall give the Customer a reasonable opportunity to review and consent to such disclosure, which consent shall not be unreasonably delayed or withheld. In case such request is not answered by the Customer within one (1) week, such consent shall be deemed given.
Performance of the Agreement by each Party shall be pursued with due diligence; however, neither Party shall be liable for any loss or damage for delay or for nonperformance due to causes not reasonably within its control, such as acts of God, strikes, unavailability of material or transportation, natural casualties, governmental order and regulations, war, fire, flood, disasters, terrorist acts, or civil unrest, for so long as such condition exists; provided that such Party shall use its best reasonable effort to avoid and remove such cause and continue performance whenever the cause is removed. In the event of any delay resulting from such causes, the time for performance of the Parties (excluding the payment of monies) shall be extended for a period of time equal to the duration of conditions preventing performance. No further modification to other terms and conditions of the Agreement shall occur.
10.1 Customer may not, without Licensor’s prior written consent, assign, pledge or otherwise transfer this Agreement or any of its rights and obligations under this Agreement to any party, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, except to an Affiliate of Customer or successor to all or substantially all of the business or assets of Customer, provided that in no event may Customer assign this Agreement or any of its rights or obligations under this Agreement to a competitor of Licensor. Any attempt to assign this Agreement, or any rights or obligations under this Agreement, in violation of this Clause shall be void and no effect.
10.2 Licensor may assign, pledge or otherwise transfer this Agreement or any of its rights and obligations under this Agreement to any third party without prior consent of Customer. In such case, Licensor shall notify the Customer in this respect.
The Agreement constitutes the entire understanding between the Parties and supersedes any and all prior understandings and agreements, whether oral or written, between the Parties, with respect to the subject matter hereof.
No amendment of any provision of this Agreement shall be effective unless it is in writing and signed by the Parties, and no waiver of any provision of this Agreement, and no consent to any departure by a Party therefrom, shall be effective unless it is in writing and signed by the other Party and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given.
If any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect under any applicable law, then: (i) unless otherwise provided under applicable law, the validity, legality and enforceability of the remaining provisions contained herein or therein shall not in any way be affected or impaired and shall remain in full force and effect; and (ii) the invalid, illegal or unenforceable provision shall be replaced by the Parties immediately with a term or provision that is valid, legal and enforceable and that comes closest to expressing the intention of such invalid, illegal or unenforceable term or provision.
To the extent permitted by applicable law, no failure on the part of a Party to exercise, and no delay in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
This Agreement has been signed in English. In the event of any conflict or inconsistency between the English language version and any other language version of this Agreement or for any dispute regarding the interpretation of any provision in the English language version or any other language version of this Agreement, the English language version of this Agreement shall prevail.
16.1 Any notice, objection or other communication to be given by one Party to the other under or in connection with this Agreement shall be directed to the addresses of the Parties specified in the applicable Order Form.
16.2 All agreements, instructions, notices, requests, demands, claims, approvals, consents and other communications hereunder shall be in writing. Any notice, objection or other communication to be given by one Party to the other under, or in connection with, this Agreement shall be in writing and signed by or on behalf of the Party giving it.
Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by the courts of State of Delaware. The governing law shall be the substantive law of State of Delaware.
Each Party shall be responsible for securing and maintaining its own permits, licenses and governmental authorizations as may be required for the respective Party to perform its obligations and/or exercise its right under this Agreement.
All cost, charges and taxes arising in connection with the signing of this Agreement including stamp tax arising out of this Contract shall be borne by the Parties equally.