Cyware End User Terms & Conditions of Use
BY DOWNLOADING OR OTHERWISE ACCESSING THE SOFTWARE OR BY INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT, YOU: (I) REPRESENT THAT YOU ARE DULY AUTHORIZED TO ACCESS AND USE THE SOFTWARE; AND (II) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. If you do not agree with the terms and conditions of the Agreement, you may not download or use the Cyware Services in any manner and should exit the Cyware Services immediately. This is a legal and binding contract between you and Cyware. The Cyware Services are made available solely for use by you, your employees (if applicable), agents (if applicable) and contractors (if applicable) (“End Users”) according to this Agreement.
1. Access and Use
2. Limitations on Use
- copy the Software or the Documentation, in whole or in part;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part thereof;
- combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs, unless such combination or incorporation is contained within the Cyware Services functionality;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices included on or in the Software or Documentation;
- rent, lease, lend, sublicense, assign, sell/distribute, publish, transfer, or otherwise provide any access to or use of Cyware Services or any features or functionality of the Cyware Services, for any reason, to any other person or entity, without the distribution and acknowledgement of these restrictions contained herein by the User(s), whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, software as a service, cloud, or other technology or service;
- use the Cyware Services in violation of any law, regulation, or rule;
- use the Cyware Services for purposes of competitive analysis of the Cyware Services, the development of a competing software product or service, or any other purpose that is to Cyware's commercial disadvantage;
- loan, lease, distribute or transfer the Cyware Services to any third parties, or otherwise allow any third party to use Cyware Services without Cyware’s consent; or.
- modify or disable Cyware Services or use Cyware Services in any manner that interferes with or disrupts the integrity or performance of Cyware Services or related systems, network or data.
3. Intellectual Property Rights
4. Customer Data
5. Access Credentials
6. Software Features and Changes
7. Term
8. Effect of Termination; Survival
9. Suspension
(a) Cyware reasonably believes that Cyware Services are being accessed or used in violation of this Agreement; (b) Customer does not cooperate with reasonable investigation by Cyware of any suspected violation of this Agreement; (c) Cyware Services or Customer Data are accessed or manipulated by a third party without Customer consent; (d) Cyware is required by law, or a regulatory or government body to suspend access to Cyware Services; or (e) there is another event for which Cyware reasonably believes that the suspension of access to Cyware Services is necessary to protect the environment in which Customer’s instance of Cyware Services is deployed.
10. Disclosure Rights
- As used herein, “Affiliates”, means any entity that directly or indirectly controls, is controlled by or is under common control with a party. As used herein, with all recognized rights to use as contained herein, “Proprietary Information” means (i) any and all nonpublic or proprietary information and data, whether of a business, technical, engineering, financial, economic or other nature and regardless of the form (whether oral, recorded, written, electronic or otherwise) that has been or is hereafter disclosed by or on behalf of a party hereto (the “Disclosing Party”) to the other party hereto (the “Recipient”), including (1) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs, and techniques; (2) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers, and customers; (3) information regarding the skills and compensation of the Disclosing Party’s employees, contractors, and other agents; and (4) confidential or proprietary information that the Disclosing Party has received and in the future will receive from third parties subject to a duty on the Disclosing Party’s part to maintain the confidentiality of such information and to use it only for certain limited purposes; and (ii) the existence of any business discussions, negotiations, or agreements between Disclosing Party and Recipient or any third party. “Representatives” means a Party’s directors, officers, employees, attorneys, Affiliates, accountants, financial advisors, investors, lenders, consultants or other agents or advisors who are not officers or employees of such Party. Cyware may disclose and Customer may receive Proprietary Information directly or indirectly through its respective Affiliates or other representatives and all such disclosures and all such receipts shall be deemed disclosures by Cyware, and receipts by Customer, of Cyware’s Proprietary Information.
- The Recipient agrees that for a period of three (3) years from the MSSA expiration date, or termination of the Agreement, whichever is later, it will (i) hold in confidence and not disclose to any third party other than its Representatives any Proprietary Information; (ii) protect such Proprietary Information with at least the same degree of care that Recipient uses to protect its own Proprietary Information, but in no case, less than a reasonable degree of care; (iii) use the Proprietary Information solely for the “Permitted Use” means any use rights granted in this Agreement, by any other written agreement between the Parties, or any Cyware Services Access Agreement; (iv) limit access to the Disclosing Party’s Proprietary Information to its Representatives having a need to know such Proprietary Information and who agree to be bound by the terms and conditions of this Agreement or otherwise are bound by confidentiality obligations substantially similar to those contained herein; and (v) promptly notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Proprietary Information. The Recipient shall be liable to the Disclosing Party for any breach by any of its Representatives of the terms and conditions contained herein.
- The term Proprietary Information shall not include, however, information that (a) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or any of its Representatives in breach of this Agreement, (b) was available to the Recipient on a nonconfidential basis prior to its disclosure by or on behalf of the Disclosing Party or its Representatives from a person who was not bound by a confidentiality or similar agreement with the Disclosing Party or any of its Representatives, or otherwise subject to an obligation of confidentiality or secrecy to the Disclosing Party or its Representatives or (c) becomes available to the Recipient on a nonconfidential basis from a person who was not bound by a confidentiality or similar agreement with the Disclosing Party or any of its Representatives, or otherwise subject to an obligation of confidentiality or secrecy to the Disclosing Party or its Representatives. Information shall not be deemed to fit within one of the enumerated exceptions to Proprietary Information merely because such information is included in a document that also happens to include other information that does fit within such an exception.
- If the Recipient or any of its Representatives is requested or required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas or similar process) in connection with any proceeding (including proceedings before the Securities and Exchange Commission and any local public service commission) to disclose or otherwise becomes legally compelled to disclose any Proprietary Information, the Recipient shall provide the Disclosing Party with prompt written notice and reasonable assistance so as to enable the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Agreement. The Recipient shall not, and shall not permit its Representatives to, oppose any action by the Disclosing Party to obtain a protective order or other appropriate remedy. If such a protective order or other remedy is not obtained, or if the Disclosing Party waives compliance with this Agreement, the Recipient (or such other person required to disclose Proprietary Information) may disclose Proprietary Information, but only such Proprietary Information as it is legally required to disclose on advice of counsel to the Recipient and only in such proceeding, and shall exercise reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such Proprietary Information so disclosed.
- Recipient hereby acknowledges and agrees that in the event of any breach of this Agreement by Recipient, including, without limitation, the actual or threatened disclosure or unauthorized use of a Disclosing Party’s Confidential and/or Proprietary Information without the prior express written consent of the Disclosing Party, the Disclosing Party will suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, it is agreed that the Disclosing Party shall be entitled to relief both at law and in equity, including injunctive relief and specific performance, in the event of any breach or anticipated breach of this Agreement, without proof of any actual or special damages and without the requirement that the Disclosing Party post a bond or other surety in connection with any such injunctive relief. The rights and remedies provided to each party in this Agreement are cumulative and in addition to any other rights and remedies available to such party at law or in equity.
11. Indemnity
12. DISCLAIMERS AND LIMITS OF LIABILITY
IN NO EVENT WILL CYWARE BE LIABLE TO YOU AS A RESULT OF YOUR USE OF THE CYWARE SERVICES OR THIRD-PARTY PRODUCT FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF CYWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. CYWARE'S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID, IF ANY, BY CUSTOMER TO CYWARE FOR THE RIGHT TO ACCESS OR GRANT ACCESS TO THE CYWARE SERVICES IN THE SIX MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO CUSTOMER’S FIRST CLAIM MADE UNDER THIS AGREEMENT. SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU WITH REGARD TO THOSE DAMAGES, BUT SHALL APPLY TO THE AGGREGATE TOTAL OF ALL OTHER DAMAGES.