Software license agreement.
LIMITED SOFTWARE LICENSE AGREEMENT
This Limited Software License Agreement applies to the online hosted software services provided by SaasMan Solutions, Inc. (“Licensor”), and subscribed to and used by the entity that owns and agrees to pay for and manage a Cognito Domain provided to it by Licensor (“Licensee”). BY ACCEPTING THIS AGREEMENT, EITHER BY COMPLETING THE WEB-BASED SIGNUP PROCESS (AS DEFINED BELOW) OR BY ACCESSING AND/OR USING ANY OF THE SERVICES (AS DEFINED BELOW), LICENSEE AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. NO OTHER FORM OF ACCEPTANCE SHALL BE REQUIRED TO MAKE THIS AGREEMENT BINDING ON BOTH PARTIES.
1. Definitions.
1.1. “Agreement” means this Limited Software License Agreement, and any materials available on Licensor’s website specifically incorporated herein by reference, as such may be updated by Licensor from time to time in its sole discretion.
1.2. “End User” means Licensee’s employees, representatives, consultants, contractors, agents, or designees who are authorized and invited by Licensee to use the Services on behalf of Licensee.
1.3. “Customer Data” means any electronic data or information submitted or provided by Licensee or an End User to Licensor through the use of the Services, excluding data, information, or materials of third parties.
1.4. “Effective Date” means the date the Services are first available for use by Licensee.
1.5. “Licensed Program” means the Cognito Web Application (https://app.cognitosoftware.com) and all of Licensor’s proprietary technology and documentation (including software, hardware, processes, user interfaces, algorithms, know-how, techniques, and other tangible or intangible technical material or information, and specifications describing the features, functionality or operation of the Services) available to Licensee by Licensor in providing the Services to Licensee and End Users.
1.6. “Services(s)” means all online hosting, maintenance and support services including the Cognito Web Application.
1.7. “Service Fees” has the meaning set forth in Section 5.
1.8. “Web-Based Signup Process” means the series of web interactions that begin when a prospective Licensee invokes the signup process on www.cognitosoftware.com, completes the form, agrees with the Privacy Policy available at https://www.cognitosoftware.com/privacy-policy and clicks the “Sign up” button.
1.9. This Agreement shall use the pronoun “it” to refer to the Licensee regardless of whether Licensee is a person.
2. Licensor’s Services; Protection of Licensee’s and End Users’ Customer Data.
2.1. Subject to the terms and conditions of this Agreement, including the payment of all applicable Service Fees, Licensor agrees to use commercially reasonable efforts to provide Licensee and its End Users with the Services, and make the Services available for use.
2.2. Licensor reserves the right to update or modify its hosting infrastructure at any time provided that such updates and modifications do not result in a material reduction in the overall security of the Services. Licensor will deliver Services via the Licensor hosting infrastructure, which is designed to provide commercially reasonable levels of security and availability. Licensee consents to the subcontracting of hosting services by Licensor to third parties, provided such contractor adheres to the levels of security set forth herein.
2.3. Licensor agrees to maintain administrative, physical, and technical controls designed to protect the security, confidentiality, and integrity of Customer Data. Those controls will include measures for preventing access, use, modification, or disclosure of Customer Data by Licensor personnel, except as (a) required in Licensor’s sole discretion to prevent or address service or technical problems, (b) required by applicable law, or (c) Licensee expressly permits in writing.
3. Grant of License; Title to Intellectual Property.
3.1. Grant of License. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a nonexclusive, non-transferable, non-sublicensable, revocable limited subscription-based license (the “License”) to access and use the Licensed Program for the subscription term, with the number and types of End User Licenses chosen by Licensee during Web-Based Signup Process or any changes made by Licensee to this information. Licensee may subscribe to more or fewer End User Licenses as required to meet its needs. The use of the Licensed Program and Services are solely for the use of Licensee and its appointed End Users and do not extend to third parties. Licensee is responsible for the use of the Licensed Program and Services by Licensee’s End Users.
3.2. License Use Restrictions. Licensee agrees to (a) use the Licensed Program solely for its own internal business or personal purposes and agrees not to rent, lease, sublicense, time-share, or otherwise distribute the Licensed Program for resale, or to host applications to provide service bureau, time-sharing, or other computer services to third parties, or otherwise make available the Licensed Program to any third parties; (b) not to reverse-engineer, decompile, disassemble, modify, create derivative works of, or copy all or any part of the Licensed Program; and (c) to take appropriate actions to protect the Licensed Program and all parts thereof from unauthorized copying, modification, or disclosure by its End Users or third parties. Licensee may not use the Licensed Program or access the Services if Licensee is a direct competitor of Licensor or for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purposes.
3.3. Title to Intellectual Property. Licensee hereby acknowledges that all right, title and interest in and to the Licensed Program and all intellectual property rights therein, including patent, unpatented inventions, copyright, trademark, trade secret, proprietary information and technology used in or comprising the Licensed Program and the Services and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Licensee to Licensor relating to the Services or the Licensed Program (collectively, the “Licensor Intellectual Property”) are owned by, and are vested in, Licensor (or its applicable licensors/suppliers). Other than as expressly set forth in this Agreement, no license or other rights in the Licensor Intellectual Property are granted to Licensee or any of its End Users and all such rights are hereby expressly reserved by Licensor. Licensor Intellectual Property does not include any Customer Data.
3.4. Aggregated Data Use. Licensor shall own all rights in aggregated and statistical data derived from the operation of the Services, including, without limitation, the number of records, the number and types of transactions, configurations, and reports processed using the Services, as well as the performance results of the Services (“Aggregated Data”). Nothing in this Agreement shall be construed as prohibiting Licensor from collecting, utilizing, transferring, or sharing Aggregated Data for purposes of enhancing Licensor’s products and services, internal reporting, and other activities related to Licensor’s businesses.
4. Licensee Obligations.
4.1. Access and Security Guidelines. Use of the Services is conditioned on Licensee’s obtaining and maintaining access to the internet. Licensee is required to maintain and use secure usernames issued by Licensor for the access and use of the Services by it and its End Users. These Usernames shall be unique working email addresses. End Users shall create and maintain their own passwords during the process of accepting invitations from Licensee to become a User. Usernames and other log-in credentials generated by or in connection with use of the Services are for Licensees’ internal use only, and Licensee will not sell, transfer, or sublicense them to any other entity or person. Licensee, together with all End Users, shall be solely responsible for ensuring the security and confidentiality of usernames and passwords, and shall notify Licensor immediately of any unauthorized use or other known breach of security. End Users shall agree to the End User License Agreement (“EULA”)( set forth at https://www.cognitosoftware.com/end-user-license-agreement ) as a necessary step of their acceptance of Licensee’s invitation to become an End User. Licensee is responsible to Licensor for all activities that occur under Licensee’s usernames and passwords, including the performance by all End Users of their obligations under the EULA. Licensee shall immediately report to Licensor and use reasonable efforts to stop any known or suspected copying or distribution of the Licensed Program.
4.2. Terms of Service and Acceptable Use. Licensee and all End Users must comply with all applicable laws, treaties and regulations in connection with Licensee’s and End Users’ use of the Services, including those related to privacy, data protection, and cross-border transfer of personal data.
4.3 Material Breach. Any use of the Services by Licensee or any End User in violation of Licensee’s and End User’s EULA obligations shall be a material breach of this Agreement. Licensee agrees to defend, indemnify and hold Licensor harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from Licensee’s or End Users’ violation of their obligations under this Agreement and the EULA, as well as applicable local, state, federal, national or foreign laws or regulations, or any third party’s rights, including but not limited to infringement of any copyright, other intellectual property right, violation of any proprietary right, invasion of any privacy rights or breach of any third party confidentiality obligation. This obligation will survive the termination of the Services. Notwithstanding anything contained in this Agreement to the contrary, Licensor accepts no liability for Licensee’s or End Users’ use of the Services to transmit Customer Data containing privileged or confidential information.
4.4. Customer Data. Licensee will be solely responsible for providing all Customer Data required for the proper operation of the Services. Licensee shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and intellectual property ownership of or right to use all Customer Data or other data submitted to the Services, including as outlined in this Agreement and in the EULA. Licensee grants to Licensor all necessary licenses in and to its Customer Data solely as necessary for Licensor to fulfill its obligations under this Agreement.
4.5. Compliance with law. To the extent Licensee provides individually identifiable information about its End Users in connection with the use of the Services, Licensee is responsible for and warrants that it will provide all necessary notices, obtain all required consents or authorizations, and otherwise comply with applicable laws, regulations, or contractual obligations.
5. Service Fees.
5.1. Service Fees. In consideration of the Services provided, Licensee shall pay Licensor in advance all fees for the Services and all applicable excise, sales, use, or other taxes, fees or charges applicable to the Services (the “Service Fees”).
5.2. Payments. Licensee agrees that Licensor may charge to Licensor’s credit card approved by Licensor (“Licensee’s Credit Card”) all amounts due and owing for the Services, including taxes and service fees, setup fees, subscription fees, or any other fee or charge associated with Licensee’s account. Licensor may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that Licensor will provide Licensee with prior notice and an opportunity to cancel its account if Licensor changes the price of a Service to which Licensee is subscribed and will not charge Licensee for a previously free Service unless Licensee has been notified of the applicable fees and agreed to pay such fees. If charges to Licensee’s Credit Card fail, Licensor shall continue efforts to charge Licensee’s Credit Card for 14 days, after which Services shall be suspended. However, for the remaining days to the end of the current billing cycle, Licensee’s Account Administrator may log in and reinstate the subscription by furnishing a valid credit card. If no such valid card is furnished by the end of the current billing cycle, Licensee’s Services will be terminated. In this event no Customer Data will be deleted, and Licensee’s Account Administrator can later log in, provide a valid credit card and begin a new subscription, after which licensed Users will be able to access all Customer Data. If Licensor is unable to collect the fees owed to Licensor for the Services through Licensee’s Credit Card, Licensor shall be entitled to take any other steps it deems necessary to collect such fees from Licensee, and Licensee will be responsible for all costs and expenses incurred by Licensor in connection with such collection activity, including collection fees, court costs and attorneys’ fees. Licensor may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
5.3. No Warranties. LICENSOR MAKES NO WARRANTIES REGARDING THE SERVICES OR THE LICENSED PROGRAM PROVIDED HEREUNDER. LICENSEE ACKNOWLEDGES THAT LICENSOR’S SOLE OBLIGATION IS TO PROVIDE THE SERVICES IN ACCORDANCE WITH SECTION 2. THE SERVICES AND LICENSED PROGRAM ARE PROVIDED AND ACCEPTED BY LICENSEE “AS IS,” WITHOUT ANY WARRANTY WHATSOEVER. ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED. LICENSOR DOES NOT WARRANT THAT THE SERVICES OR THE LICENSED PROGRAM WILL MEET LICENSEE’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL BE ERROR-FREE, COMPLETELY SECURE, OR THAT ALL FAILURES OF THE LICENSED PROGRAM WILL BE CORRECTED.
6. Quality and Accuracy of Available Information.
Licensee acknowledges that the information available from the use of the Services, Licensor’s systems and/or through the interconnecting networks may not be accurate. Licensor makes no representation or warranty of any kind, either express or implied, regarding the quality, accuracy or validity of Customer Data or any data or information available from or through use of the Services and such systems and networks. Use of information obtained from or through Licensor’s system and networks and the use of the Services are at Licensee’s sole and absolute risk. LICENSOR SPECIFICALLY DISCLAIMS AND DENIES ANY RESPONSIBILITY FOR THE COMPLETENESS, ACCURACY OR QUALITY OF THE SERVICES PROVIDED BY IT UNDER THE TERMS OF THIS AGREEMENT.
7. Limitation of Liability.
LICENSOR SHALL NOT BE LIABLE TO LICENSEE, ITS USERS, OR ANY THIRD PARTIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OR CORRUPTION OF DATA, INTERRUPTION OF BUSINESS, LOSS OF GOODWILL OR ANY AND ALL OTHER SIMILAR DAMAGES OR LOSS WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY, OR OTHERWISE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE USE OF THE SERVICES OR THE LICENSED PROGRAM EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S LIABILITY HEREUNDER TO LICENSEE OR A THIRD PARTY, FROM ANY CAUSE OF ACTION WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE, EXCEED IN THE AGGREGATE THE AMOUNTS PAID TO LICENSOR FOR THE SERVICES HEREUNDER IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM. ALL CLAIMS INCLUDING SUBSEQUENT CLAIMS SHALL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS IS LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THIS AGREEMENT BY LICENSOR. Licensor shall not be liable for any loss resulting from a cause over which Licensor does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to Licensee’s computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities, telephone or telephone service; or unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes. Licensor is not responsible for any damage to Licensee’s computer, software, information technology equipment or other property resulting from Licensee’s use of the Services.
8. Confidentiality.
8.1. Each party may have access to information that is confidential to the other party (“Confidential Information”) including, with respect to Licensor, the Licensed Program, the Services, business and marketing plans, technology and technical information, product plans, and designs, and any other proprietary business processes disclosed by Licensor; with respect to Licensee, Customer Data, and any other information which is not otherwise readily available in the public domain. Confidential Information also specifically includes the pricing terms of this Agreement. The parties agree to use the same degree of care to protect the other’s Confidential Information as they use to protect the confidentiality of their own (but never less than reasonable care). The parties also agree (i) not to make each other’s Confidential Information available to any third party (other than employees and contractors who need access to perform the Services specified under this Agreement), (ii) not to use each other’s Confidential Information except as otherwise permitted by this Agreement, and (iii) to hold each other’s Confidential Information in confidence during the term of this Agreement and for as long as they have custody or control of Confidential Information. The parties also agree that no adequate remedy at law exists for breach of this Section 8, and any such breach would cause irreparable harm to the non-breaching party who shall be entitled to seek immediate injunctive relief, in addition to whatever remedies it has at law or otherwise.
8.2. Either party may disclose Confidential Information to the extent compelled by law to do so, provided the disclosing party first give the other party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8.3. Confidential Information shall not include or information that (i) is in the public through no act or omission of the other party, (ii) was in the other party’s lawful possession prior to the disclosure, (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure, (iv) is independently developed by the other party, or (v) is data or information not strictly required for the Services to function for which Licensor disclaims any and all liability and damages.
9. Force Majeure.
If Licensor’s performance of any obligation under this Agreement is prevented, restricted or interfered with by any cause that is not within the reasonable control of the Licensor, including but not limited to malfunction of Licensee-supplied equipment, disruptions of Internet protocol (“IP”) service through intermediate carriers other than Licensor, acts of God, explosions, vandalism, cable cut, storms, fires, floods or other catastrophes, power failure, national emergencies, insurrections, riots, wars, terrorism, strike, lockouts, boycotts, work stoppages or other labor difficulties, or any law, order, regulation or other actions of any governmental authority, agency, instrumentality, or of any civil or military authority, then Licensor shall be excused from such performance on a day-to-day basis during such restriction or interference.
10. Notices.
All notices required or permitted to be given hereunder shall be transmitted to the other party by email, and shall be deemed received on the date and time recorded by the receiving email server. Notices to Licensor shall be emailed to notice@cognitosoftware.com. Notices to Licensee shall be emailed to the address that matches Licensee’s Username.
11. General Provisions.
11.1. Entire Agreement. This Agreement constitutes the entire understanding and agreement between Licensee and Licensor with respect to the subject matter hereof and supersedes all proposals and prior agreements and understandings, oral or written, and any other communications between the parties regarding this subject matter. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto (and their respective successors, legal representatives and permitted assigns) any rights, remedies, liabilities or obligations under or by reason of this Agreement. This Agreement incorporates by reference Licensor’s End User License Agreement which is available at https://www.cognitosoftware.com/end-user-license-agreement In the event of any conflict between the terms of this Agreement and the terms of the Licensor’s End User License Agreement, the terms of this Agreement shall prevail.
11.2. Assignment. No part of this Agreement may be assigned without the prior written consent of the other party. Either party may assign this Agreement, however, without prior written consent in the event of a merger, a reorganization, a sale of all or substantially all of its assets, change of control or a similar event. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns.
11.3. Waiver. Any waiver of any provision of this Agreement by Licensor shall be in writing and signed by Licensor. No waiver of rights shall constitute a subsequent waiver of any rights whatsoever. The failure of Licensor to enforce any provision hereof shall not constitute the permanent waiver of such provision.
11.4. Severability. The provisions of this Agreement are severable, and any provision determined to be void or unenforceable shall be ineffective to the extent of such invalidity only, without in any way affecting the remaining parts of this Agreement and such invalid provision shall be replaced with an enforceable provision which achieves to the greatest extent possible the parties’ original intent.
11.5. Remedies. No remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.
11.6. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Alabama without regard for its choice of law rules. Licensee and Licensor submit to the personal and exclusive jurisdiction of the state courts and federal courts located within or having jurisdiction over Baldwin County, Alabama for resolution of any lawsuit or court proceeding pertaining to the subject matter of this Agreement.
11.7. Publicity. Licensee hereby authorizes and permits Licensor to use Licensee’s name in customer lists and other promotional materials naming Licensee as a customer of Licensor and a User of the Services.
11.8. Export Compliance. Licensee acknowledges that Licensor’s software Services, the Licensed Program and the Licensor’s Intellectual Property are subject to export laws and regulations of the United States. Each party represents that it is not named on any United States or other country’s government denied-party list (or the equivalent thereof). Licensee shall not export or re-export directly or indirectly (including via remote access) any of Licensor’s software Services, the Licensed Program or the Licensor’s Intellectual Property to any country for which export or re-export is forbidden or for which a validated license is required. Licensee shall not permit its End Users to access or use the Services or the Licensed Program or the Licensor Intellectual Property in violation of any United States or other country’s applicable export law or regulation and shall otherwise comply with all export laws, rules and regulations of the United States as amended now or in the future.
11.9. Anti-Corruption. Licensee represents and warrants that Licensee has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Licensor’s employees or agents in connection with this Agreement (reasonable entertainment in the ordinary course of business excluded). Without limiting the foregoing, Licensee warrants that it has not offered or paid, and will not offer or pay, any money or anything else of value, to any person for the purpose of securing any improper advantage in violation of any applicable anti-corruption law or regulation. If Licensee learns of any violation of the above restrictions, it will use reasonable efforts to promptly notify Licensor.
Effective: January 1, 2022
