Cyware End User Terms & Conditions of Use
These End User Terms and Conditions of Use (these "Terms of Use" or this “Agreement”) govern your use of Cyware Labs, Inc.’s (the “Company” or “Licensor”) proprietary software applications (the "Software"), including user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the Software, its specifications , or its use (the "Documentation") through a website or mobile application, or other means of access whether provided by the Company or your employer or other person or entity (as applicable, the “Platform”) provided to you ("you" or "your") for use pursuant to and subject to a master services agreement, or similar agreement (“MSA”) and an applicable order for the Software (an “Order”) between Licensor and your employer or other person or entity (the "Licensee") who has made the Software available to you for use in connection with your relationship with the Licensee.
BY DOWNLOADING OR OTHERWISE ACCESSING THE SOFTWARE FROM THE PLATFORM, YOU: (I) REPRESENT THAT YOU ARE DULY AUTHORIZED BY LICENSEE TO ACCESS AND USE THE SOFTWARE; AND (II) ACCEPT THESE END USER TERMS OF USE AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. If you do not agree with the terms and conditions of the Agreement, you should not download or use the Software or the Documentation and should exit the Platform. This is a legal and binding contract between you and the Company. The Software is made available for downloading solely for use by you according to this Agreement.
License Grant
Subject to the terms and conditions of this Agreement, the Company grants you a limited, revocable, non-exclusive, right and license to use and access the Software (the “License”) solely for the Licensee’s internal business purposes or other purposes as authorized by the Licensee and during the applicable term.
Limitations on Use
You shall not, directly or indirectly:
- 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;
- 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, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Software or any features or functionality of the Software, for any reason, to any other person or entity, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, 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, service bureau, software as a service, cloud, or other technology or service;
- use the Software or Documentation in violation of any law, regulation, or rule;
- use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor's commercial disadvantage;
- loan, lease, distribute or transfer the Software to any third parties; or
- modify or disable the Services or use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or related systems, network or data.
Intellectual Property Rights
The Software and Documentation are the intellectual property of and are owned by the Company, and the structure, organization, and code of the Software are the valuable trade secrets and confidential information of the Company. The Software is protected by United States copyright law, patent law and international treaty provisions. You acknowledge that the Software is provided under license, and not sold, to you. You do not acquire any ownership interest in the Software under this Agreement, or any other rights to the Software other than to use the Software in accordance with the license granted under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software.
Collection and Use of Information
Licensor may, directly or indirectly through the services of others, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used; provided that, the information cannot be attributable or associated with the user or the user organization. You agree that the Licensor may use such information for any purpose related to any use of the Software by you, including but not limited to: (a) improving the performance of the Software or developing updates; and (b) verifying compliance with the terms of this Agreement and enforcing Licensor's rights, including all intellectual property rights in and to the Software.
Delivery
Subject to an applicable Order, Licensor shall deliver the Software as follows:
- Software-as-a-Service Deployment. The Software may be accessed via the web-based Platform (a “SaaS Deployment”). If SaaS Deployment is indicated on an applicable Order, Licensor shall provision all necessary access to the Software by providing necessary access credentials to you.
- On-Prem Deployment. The Platform and Software may be locally installed (an “On Prem Deployment”) in Licensee’s owned cloud environment or physical server (collectively, “Licensee Environment”). If On Prem Deployment is indicated as a part of an applicable Order, Licensor shall deliver the Platform and Software electronically or by other means as agreed between the parties, within the On-Prem Deployment delivery period specified as a part of an applicable Order. You and/or the Licensee are responsible for obtaining, deploying and maintaining all computer hardware, software, network and other communications equipment necessary for you to access the Software in the Licensee Environment.
Access Credentials
You are responsible for maintaining the security of any user passwords or other access credentials required for your access to and use with the Software. You also agree to abide by the Licensee’s security policies and practices in accessing the Software and the Platform.
Software Features and Changes
The Company may, from time to time, update the Software and offer such updated Software to you. However, updating shall be at the Company’s sole discretion and the Company shall have no obligation, express or implied, to update the Software. Unless, the MSA provides otherwise: (i)the Company shall have the right at any time, in its sole and absolute discretion, to modify or delete features and to change the operating interface in the Software, or to change the hardware and computer system specifications necessary or recommended to operate the Software; and (ii) the Company does not warrant the level of performance of the Software or that earlier versions superseded by new versions will continue to be capable of access to or use within your specific operating environment.
Support
Licensor shall provide support services in accordance with its then-current support policy, which will be provided to you upon written request. Such policy and related support terms and conditions may be updated from time to time by Licensor. Support services shall only be made available for the subscription term (including any renewal of a subscription term) of any Software included under an applicable Order.
Termination
The License will terminate immediately in the event one or more of the following occurs of: (a) the expiration or earlier termination of your subscription to the Software pursuant to an applicable Order; (b) termination of the MSA between Licensor and Licensee, subject to any transition or wind-down terms in such MSA; (c) your ceasing to be authorized by Licensee to use the Software for any or no reason, or (d) if you breach any provision of these Terms of Use. Upon any termination of this Agreement, you must cease all use of the Software, destroy all copies then in your possession or control and take such other actions as the Company may reasonably request to ensure that no copies of the Software remain in your possession or control. You agree that neither the Company nor the Licensee will be liable to you or any third party for any termination of your use of the Software.
Disclaimers and Limits of Liability
THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE, OR THE USE THEREOF, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE OR THE SERVER THAT MAKES THE SOFTWARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE INFORMATION ACCESSIBLE THROUGH THE SOFTWARE IN TERMS OF CORRECTNESS, ACCURACY, ADEQUACY, TIMELINESS, RELIABILITY OR OTHERWISE. WE PROVIDE NO WARRANTIES FOR SERVICES NOT PROVIDED BY US. SOME STATES DO NOT PERMIT CERTAIN LIMITATIONS OR EXCLUSIONS ON WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU AS A RESULT OF YOUR USE OF THE SOFTWARE FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF THE COMPANY 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. THE COMPANY'S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID, IF ANY, FOR THE SOFTWARE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Entire Agreement
This Agreement embodies the entire understanding between you and the Company with respect to, and supersedes any prior understandings or agreements between you and the Company, oral or written, relating to, the Software and your use of the Software.
Regulatory Matters
The Software, the Software technology and its related Documentation may not be exported or reexported in violation of the U.S. Export Administration Act and its implementing regulations. Any Software which is downloaded for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided only with Restricted Rights. All use, duplication, or disclosure of the Software by the U.S. Government is subject to restrictions as set forth in subparagraphs (c)(1)(ii) of the Rights in Technical Data Computer Software Clause at DFARs 252.22-70013 or subparagraphs c(1) and c(2) of the Commercial Computer Software Restricted Rights Clause at 48 C.F.R. Section 52.227-19, as applicable.
Governing Law and Venue
This Agreement shall be governed by and construed in accordance with the laws of the United States of America and of the State of New York, without regard to conflict of law principles. You agree that all legal proceedings arising out of or in connection with this Agreement shall be brought exclusively in the state or federal courts located in New York, New York, and you expressly submit to the jurisdiction and venue of such courts and consent to extra-territorial service of process, should a dispute arise.
Assignment
This Agreement and your rights and obligations hereunder may not be assigned by you without the prior written permission of the Company and shall inure to the benefit of the Company's successors and assigns whether by merger, consolidation or otherwise. The Company may assign this Agreement or any of its rights or obligations under this Agreement to an entity affiliated with, or a successor to or assignee of, the Company, or to any other third party.