Software License and Related Services Agreement Version: 1.2
This Software License and Related Services Agreement (the “Agreement”) between Kognitio, Inc. whose principal place of business is at Two Prudential Plaza, 180 North Stetson Street, Suite 3500, Chicago, IL 60601, (“Licensor”) and the user of the Product (“Licensee”)
1.1. “Agreement” means this document and attached License Schedule and any further schedules which may be added by agreement between the Parties.
1.2. “Certified Operating Environment” or “COE” means all pertinent hardware, operating system software and other software on which the Product is certified by Licensor to operate. The COE pertinent to this License Agreement is defined in the License Schedule.
1.3. “Documentation” means the manual(s) and other documents associated with Product supplied by Licensor to Licensee.
1.4. “Effective Date” means earlier of: the start date specified in the License Schedule or the date the Product(s) is electronically downloaded.
1.5. “License” means the license to use Products granted to the Licensee by Licensor here under.
1.6. “License Fee” means the fee chargeable by Licensor to Licensee for Use of the Product as set out in the License Schedule.
1.7. “License Schedule” means the document attached to this Agreement where set out are the Products and terms, the applicable Licence Fees, the COE and any other restrictions on the Use of the Products.
1.8. “Parties” means the Licensor and Licensee or in the singular either the Licensor or Licensee, as the context demands.
1.9. “Product” means the Licensor’s proprietary software programs specified in the License Schedule supplied to Licensee in object code and shall include any replacements, modifications or additions supplied under the License.
1.10. “Server” means the server platform as specified in the License Schedule
1.11. “Support Services” means the Licensor’s mandatory services of support and maintenance for the Products (“Product Support & Maintenance”) and the Licensor’s available services of training and installation consultancy as they relate to the Products licensed hereunder.
1.12. “Use” means storing, installing, loading, executing or displaying Product on a computer, processor or controller or making a copy of the Product for archiving or back-up purposes.
2.1. Subject to Licensee’s payment of Licensor fees, Licensee is granted a non-exclusive, non-transferable license to use the Product, subject to the terms and conditions of this Agreement. Unless otherwise specified in a schedule, Licensor grants to Licensee a license to Use one copy of the Product at any one time.
2.2. Unless otherwise permitted by the Licensor, the Licensee may only make a reasonable number of copies of the Product(s) for back-up or archival purposes. All copyright, trademark and related proprietary notices incorporated in or fixed to the Product shall be duplicated by Licensee on all copies or extracts of the Product.
2.3. Upon 30 days written notice, the Licensor may audit the Licensee’s Use of the Product(s). The Licensee agrees to cooperate with the Licensor’s audit and provide reasonable assistance and access to information.
2.4. All intellectual property rights and title to the Product shall remain with Licensor and no interest or ownership therein is conveyed to Licensee under this Agreement.
2.5. Except to the extent permitted by the law, Licensee will not disassemble or decompile the Product without the Licensor’s written consent. Where Licensee has rights under statute, Licensee will provide Licensor with reasonably detailed information regarding any intended disassembly or decompilation. The Licensor has the right to impose reasonable conditions, such as reasonable fees for doing so. Licensee will not decrypt the Product unless necessary for legitimate use of the Product.
2.6. Unless otherwise specified in this Agreement, Product may be used solely to meet Licensee’s own internal data processing requirements. Licensee may not lease, loan, resell or otherwise distribute the Product; or permit access to or use of the Product by or on behalf of any third party.
2.7. Product Territory. The License granted hereunder is valid in all territories (the “Territory”) except that Licensee acknowledges that the export of the Product may be subject to regulations and shall be solely responsible for complying with such regulations. Licensee represents and warrants that it shall not, directly or indirectly, export, re-export, tranship or use the Products or related technology or commit any act in violation of any applicable export control laws and regulations.
2.8. Certified Operating Environment. Unless otherwise specified in this Agreement, the Product may only be used in the COE specified in the License Schedule. Licensee may, upon Licensor’s prior written consent, change the COE, provided at the time of such change the COE is supported by Licensor. A change in the COE may be subject to additional fee at Licensor’s then current rates.
2.9. Product Documentation is either shipped with the Products or made available on-line. Copies of Documentation may be made by Licensee for internal use at no additional charge, subject to the Licensor copyright notice being reproduced on all copies
3.1. The License Fee, is defined in the License Schedule, and is exclusive of applicable sales, use, service, value added or like taxes, which shall be shown separately on invoices and paid by Licensee. Further, Licensee agrees to indemnify and hold Licensor harmless from any liability for claims, penalties and costs caused by Licensee’s failure to pay for any such taxes
3.2. Licensor shall invoice Licensee for the License Fee(s) on delivery of the Product
3.3. The Licensee shall pay invoices within 30 days of the date of the invoice.
3.4. Should any sum, due to Licensor, remain unpaid after such period, Licensor reserves the right to recover all copies of the Product.
3.5. Delinquent invoices shall accrue interest (accruing from day to day as well after as before any judgement or award and without prejudice to any other right or remedy) at the rate of 1.5% on any unpaid amounts, which interest shall be in addition to such fees due. For the purposes of this sub paragraph 3.5, the term “delinquent” shall not include invoices or amounts disputed in good faith by Licensee
3.6. Ordering of Licenses and Support Services. Licenses to use Products or Support Services may be ordered from time to time under the terms of this agreement by Licensee although Licensor has no obligation whatsoever to accept such order. Unless explicitly set forth in this agreement, any and all discounts extended by Licensor under this Agreement shall not automatically apply to orders for additional Products and /or Support Services.
3.7. Electronic Downloads. The Products are available for electronic download to Licensee. Risk of loss passes at the time of such electronic delivery. Licensee agrees not to request any physical delivery of Products and should it occur that any such delivery shall be rejected by Licensee. Licensee agrees and understands that the calculation of taxes may be affected by the delivery method and delivery location of the Product and any corresponding Support Services.
4.1. This Agreement and the License granted hereunder shall become effective as of the Effective Date and the term of the License(s) granted hereunder is defined in the License Schedule provided (hereinafter the “Term”). However, Licensor may immediately terminate this Agreement or any other services hereunder if:
4.1.1. Licensee has used the Product otherwise than in accordance with the Agreement;
4.1.2. Licensor has notified Licensee in writing of a material breach that is not remedied within thirty (30) days;
4.1.3. Licensee fails to pay any fees when due; or
4.1.4. Licensee has a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to the effect or if Licensee enters into any voluntary arrangement with its creditors or shall become subject to an administration order.
4.2. Termination shall not relieve Licensee from its obligation to pay the fees that remain unpaid, and shall not limit either Party from pursuing any other available remedies. Upon termination by Licensor of this Agreement or any part thereof, Licensor shall have no obligation to refund to Licensee any fees paid by Licensee, and Licensee agrees to waive, in perpetuity and unconditionally, any and all claims for refunds.
4.3. If a License for one or more Products is terminated for any reason, Licensee must immediately un-install and destroy all copies of such Product and certify to Licensor, in writing and within thirty (30) days of such termination, that such Products have been un-installed and destroyed.
4.4. This Clause shall survive the termination of this Agreement.
5.1. Licensee is responsible for:
5.1.1. The installation and testing of the Licensed Products as well as the combination of Licensed Products with each other unless otherwise specified in this Agreement
5.1.2. The management and operational use of the Licensed Products and the results obtained therefrom, including all audit controls, except if otherwise agreed between the Parties in writing and subject to a separate agreement.
5.1.3. Taking appropriate action to satisfy the following:
18.104.22.168 not copying or otherwise providing or otherwise making available for Use or otherwise the Products or any portion thereof to any persons other than the employees of the Licensee specifically engaged in the Use of the Products without the express written consent of Licensor: and
22.214.171.124 before disposing of any media, ensuring that any Licensed Products contained thereon have been erased or destroyed
6.1. Licensor warrants that
6.1.1. it has the right to license the Products;
6.1.2. provided Licensee obtains Product Support & Maintenance from Licensor, complies with all other obligations in this Agreement, and the Products are without modification by any person other than the Licensor, the Products, as updated and when used in accordance with this Agreement, will operate substantially in conformity with the Documentation;
6.1.3. the Product physical media will be free of material defects for ninety (90) days, the warranty period, following Licensee’s receipt of the Product
6.2. If, within the warranty period, Licensee detects a defect in a Product’s physical media, Licensee may return the defective physical media to Licensor and Licensor shall replace said media free of charge.
6.3. In the event of a breach of the warranties under this Clause 6 (media warranties excepted), Licensor shall have no liability or obligations other than to reimburse the Licensee for the inoperative Product in an amount not exceeding the said Product’s License Fee.
6.4. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE (INCLUDING BUT NOT LIMITED TO SATISFACTORY QUALITY AND FITNESS FOR PURPOSE), ARE HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW. NO WARRANTY IS MADE REGARDING THE RESULTS OF USAGE OF A PRODUCT OR THAT A PRODUCT’S FUNCTIONALITY WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE PRODUCT WILL OPERATE UNINTERUPTED OR ERROR FREE. THIS CLAUSE SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
7.1. Licensor, at its own expense, shall defend, or at its option, settle any claim or suit against the Licensee on the basis of infringement of any patent, trademark, copyright or trade secret by the Product provided that:
7.1.1. Licensee notifies Licensor promptly of each such claim or suit; and
7.1.2. Licensor is given sole control of the defence and/or settlement; and
7.1.3. Licensee fully co-operates and provides all reasonable assistance to Licensor in the defence or settlement; and
7.1.4. Licensee makes no statement prejudicial to Licensor.
7.2. Licensor will pay infringement claim defence costs, settlement amounts and court awarded damages. If such a claim appears likely, Licensor may, at its expense and sole discretion:
7.2.1. procure for Licensee the right to use the Product or the affected part thereof;
7.2.2. replace the Product or affected part with other suitable software;
7.2.3. modify the software or affected part to make it non-infringing; or
7.2.4. if none of the foregoing remedies is commercially feasible, refund a pro-rated portion of the payments paid by Licensee to Licensor for the Product or the affected part.
7.3. Licensor shall have no obligations under this Clause 7 to the extent a claim is based on:
7.3.1. the use of any version of the Product other than the current, unaltered release, or if such infringement would have been avoided by the use of a current, unaltered release;
7.3.2. the combination, operation or use of the Products with other software which was not provided by Licensor if such infringement would have been avoided in the absence of such combination, operation or use;
7.3.3. Licensee’s use of the Product in any manner inconsistent with the license granted under this Agreement including, without limitation, the use of the Product on, or in conjunction with, an operating environment other than the COE specified in License Schedule, or any other operating environment not explicitly approved in writing by Licensor ; or
7.3.4. the result of the negligence or wilful misconduct of Licensee.
7.4. Indemnification by Licensee. Licensee shall indemnify and hold Licensor and its suppliers harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from:
7.4.1. any claimed infringement or violation by Licensee of any copyright, patent or other intellectual property right with respect to Licensee’s use of the Product outside the scope of this Agreement;
7.4.2. any Licensee violation of export regulations; and
7.4.3. any third party’s access to or use of the Products
8.1. Licensor does not exclude or limit its liability to the Licensee for death or personal injury caused by any negligent act or omission or wilful misconduct of the Licensor or its employee.
8.2. In entering this Agreement, Licensee had recourse to its own skill and judgement and has not relied on any representations made by Licensor. Subject to this Clause 8:
8.2.1. In no event will Licensor or its suppliers be liable to Licensee for any indirect, special, incidental, consequential or punitive damages including without limitation, any loss of profits, loss of revenues or loss of inaccuracy of any data even if Licensor has been advised of the possibility of such damages;
8.2.2. Licensors liability to Licensee for actual damages for any cause whatsoever shall be limited to the Fees paid by Licensor for the Product upon which the damages were based; and
8.2.3. In no event shall Licensee raise any claim under this Agreement more than two years after;
126.96.36.199 the discovery of the circumstances giving rise to such claim or
188.8.131.52 the effective date of the termination of this Agreement.
8.3. This clause shall survive the termination of this Agreement.
9.1. Any Product Support & Maintenance is to be supplied by the Licensor and is subject to the definitions, terms and applicable fees set out in the appropriate schedule attached hereto, except if subject to a separate agreement agreed in writing between the Parties.
10.1. Additional Services. Other than to the extent agreed between Licensor and Licensee under the terms of this Agreement and unless defined in an appropriate schedule to this Agreement, Licensor’s obligations under this Agreement do not include Product consulting or Licensee personnel training. Such additional Support Services may be obtained by Licensee on an as-available basis and at Licensor’s prevailing rates and will be subject to a separate written agreement between the Parties
10.2. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of Illinois and the parties submit to the exclusive jurisdiction of the US Courts.
10.3. Product Benchmarking. Licensee shall not release the result of any Product benchmark or similar testing measure to any third party without the prior written approval of Licensor for each such release.
10.4. Publicity material
10.4.1.The Parties shall work together to ensure mutual benefit from publicity material associated with this Agreement, but subject to sub-clauses 10.5.2 and 10.5.3 below, neither Party shall issue such material without prior written consent of the other Party (such consent not to be unreasonably withheld and in any case a reasoned response shall be given within seven (7) days of receiving the request for consent from the other Party);
10.4.2.The Licensee agrees that the Licensor shall be entitled to announce the Agreement publicly subject to due performance of the Agreement by the Licensor in accordance with clause 6 hereof;
10.4.3.Subject to the prior written consent of the Licensee (such consent not to be unreasonably withheld), the Licensor shall be entitled to use the Licensee as a reference in the Licensor’s own publicity and advertising material
10.5. Force Majeure. Except with respect to obligations to pay fees when due hereunder, neither Party shall be deemed in default Agreement to the extent that any delay or failure in performance of its obligation results, without its fault or negligence, from any cause beyond its reasonable control, provided said Party gives reasonably prompt notice of the force majeure condition and uses reasonable efforts to rectify said condition.
10.6. Interpretation. In this agreement:
10.6.1.Reference to any statue or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted:
10.6.2.Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and unincorporate; and (in each case) vice versa:
10.6.3.Any reference to a Party to this Agreement includes a reference to his successors in title and permitted assigns; and
10.6.4.The headings to the clauses are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
10.7. Notices. All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given with this Clause. Any such notice may be delivered personally or by first class pre-paid letter or facsimile transmission or e-mail and shall deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission or e-mail when despatched.
10.8. Confidential information. Each Party shall retain in confidence and require its employees, agents and contractors, to retain in confidence all information contained in the Products and Documentation and all information and know-how, regardless of form, transmitted to such Party that the disclosing Party has identified as being proprietary and/or confidential or which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as propriety and/or confidential (“Confidential Information”). The receiving Party shall retain Confidential Information in as secure a manner as reasonably possible, but in no event less secure than the receiving Party retains its own Confidential Information. Confidential Information shall remain the sole property of the disclosing Party and shall not be disclosed to any third party without the express written consent of the disclosing Party (except, solely for the receiving Party’s internal business needs, to consultants who are bound by a written agreement with the receiving Party to maintain the confidentiality of such Confidential Information in a manner consistent with this Agreement). Confidential Information shall not include any information that (i) is at the time of disclosure or subsequently become publicly available without the receiving Party’s breach of any obligations owed the disclosing Party; (ii) became known to the receiving Party prior to the disclosing Party’s disclosure of such information to the receiving Party; (iii) became known to the receiving Party from a source other than the disclosing Party other than by breach of an obligation of confidentiality owed to the disclosing Party; (iv) is independently developed by the receiving Party; (v) is produced in compliance with applicable law or a court order, provided the other Party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production. This Agreement constitutes the proprietary information of Licensor. This clause shall survive termination of the Agreement.
10.9. Integration, Amendment and Assignment. This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements or representations, oral or written, including terms and conditions as may be printed on any purchase order documentation used by the Licensee, any shrink-wrap license accompanying the Products, and all other communications relating to the subject matter hereof. This Agreement may not be modified or any term or condition waived except by a written instrument signed by a duly authorized representative of each Party. Neither this Agreement nor any right or obligation of Product licensed hereunder may be assigned by Licensee without Licensor’s advanced written consent, such consent not to be unreasonably withheld. The assignee of this Agreement shall be bound to all terms and conditions of this Agreement or the assignment of this Agreement shall be of no effect and void.
10.10.Severability. If the whole or any part of any provision of this Agreement is declared unlawful, void or unenforceable, then that provision or part provision shall be severed from this Agreement and will not affect the validity and enforceability of any of the remaining provisions
10.11.Power and Authority. The Licensee warrants it has full power and authority to enter into this agreement and has taken all necessary actions and obtained all relevant consents, approvals or authorisations to enable it to effectively enter into and perform this Agreement.
10.12.Waiver of Remedies. No forbearance, delay or indulgence by either Party in enforcing the provisions of this agreement shall prejudice or restrict the rights of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either Party is exclusive of any other right, power or remedy available to that Party and each such right, power or remedy shall be cumulative.
10.13.Non-Assignment. Save that either Party shall be entitled to assign the benefit of this Agreement in whole or in part to any company which is its holding or subsidiary company or a subsidiary of its holding company Licensor shall assign the benefit of this Agreement without the prior written consent of the other Party, such consent not to be unreasonably withheld.
Product Capacity/Qty Term
Kognitio V8.1 Software License,
– unlimited users
– command line import/export utilities
As provisioned Perpetual
Kognitio Client Utilities
– Kognitio V8.1 Admin Tools
– Kognitio Console
C.O.E. (Certified Operating Environment)
SERVER PLATFORM SERVER O/S CUSTOMER DESKTOP O/S
HP Proliant or similar servers Linux MS/Windows XP, Win7, Win8, Win8.1, Win10 or Linux or Mac
© 2017 Kognitio Limited