The following general Terms of Service (“Terms”) represent the binding agreement, along with any other agreements that reference these Terms, between You (“you”, “your”, “yours or “user”) and Cognizer, Inc. (“COGNIZER”, or “we”, “us”, “ours”)
These Terms apply to your use of Cognizer website, software, and Information Systems (“Software”). These Terms, when combined with the terms of any associated Proof of Concept, Implementation, Subscription or other agreements (“Referenced Agreement(s)”), govern your use of the Cognizer Services (“Services”). By signing any Referenced Agreements, you are automatically bound by the terms of both the Referenced Agreement and these Terms.
COGNIZER may modify these Terms at any time by posting a revised version on our website. By using our Services, you agree to the latest version of these Terms.
- License to use.
Under the terms herein and any Referenced Agreements, we grant you a limited, non-exclusive, and worldwide license to use the Software as specified in these Terms and any Referenced Agreements, (a) according to the documentation provided by us, (b) for your sole use. Any copy of the Software implying a breach of this agreement will be deemed as a breach of the copyrights.
You agree not to, under any circumstance: (a) allow third parties to distribute copies of the Software or of the related documentation to a person or entity outside the licensed Service, (b) reproduce, modify or copy the Software and the related documentation except when clearly allowed by law, these Terms or written consent by us, (c) provide, rent, sell or transfer by any means the Software or a copy of all or part of such Software or use it to benefit third parties, (d) disassemble, use reverse engineering compile or decompile the Software. If you believe you need information concerning the interoperability of the Software with other programs, you will not take apart or decompile the Software to obtain such information and you agree to request it in writing from us. Once we have received your request, we will, acting reasonably, determine if you need such information for the interoperability of a program independently created with other programs and we will provide such information as soon as reasonably practical or will, at your cost assist you with achieving the interoperability or will communicate to you that we will not provide such information or assistance.
We agree not to, under any circumstance: (a) share with third parties any of your documentation, passwords, platform information, codes or confidential information (b) modify your content without written consent, (c) reproduce, modify or copy your platform software and the related documentation except when clearly allowed by law, these Terms or written consent by you.
- Limitation of Liability
IN NO EVENT WILL EITHER PARTY OR THEIR AFFILIATES BE LIABLE TO EACH OTHER OR THEIR AFFILIATES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY NATURE ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF EITHER PARTY WILL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY AND REGARDLESS OF WHETHER SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY. NEITHER YOUR NOR OUR LIABILITY UNDER THESE TERMS WILL EXCEED THE AGGREGATE AMOUNTS PAID HEREUNDER.
- Infringement Indemnification
We will defend, hold harmless, and indemnify you from and against any and all claims, suits, actions, demands, and proceedings of any kind threatened, asserted or filed against you by any third party (collectively “Claims“), and any damages, losses, expenses, liabilities or costs of any kind, (including but not limited to reasonable attorneys’ fees) incurred in connection with such Claims (including those necessary to successfully establish the right to indemnification), arising out of or relating to infringement of the Software on the intellectual property of third parties.
You may have entered into a Non-Disclosure Agreement (“NDA”) with COGNIZER, in which case the terms of that NDA are hereby incorporated into these Terms. We both agree that in the event that there is a conflict between these Terms and the NDA relating to our confidentiality obligations, the terms of the NDA will control.
COGNIZER agrees to provide the technical and human means needed to perform the hosting services of the Software at the level specified herein, ensuring the availability, continuity and accessibility of the Software by you and your users. For this purpose, you will establish an interface with access to the Software and COGNIZER’s servers where this Software is installed. COGNIZER will provide you with all necessary technical assistance and information necessary to enable you to establish such interface.
- Updates; Support; Maintenance.
During the contractual period, COGNIZER will provide Software adjustments, bug fixes and updates together with other available technical material. All the adjustments and updates made by COGNIZER will be deemed part of the Software and will be subject to the Software License Agreement.
COGNIZER will correct, at no cost to you any fault, anomaly or mistake that may occur in the Software and/or its operation. Notwithstanding the foregoing, COGNIZER will not guarantee that the Software or the Software functions will meet your needs, will work without any interruption or that it will be free of errors. Your sole remedy against our failure to comply with the above mentioned limited guarantee will be the substitution or amendment of the faulty Software or of its support or the refund of the Price of the License paid by you if we, at our sole discretion, are not able to carry out the substitution or amendment.
COGNIZER will be entitled to use your name as a reference in marketing materials. Additionally, COGNIZER will be entitled to include the text and logo ‘Powered by COGNIZER’ at the foot of the customer-branded pages. The text and logo “COGNIZER” may also contain a hyperlink to COGNIZER website.
- Conflicting Terms.
Acceptance of these Terms by you is expressly limited to its terms and the term of any Referenced Agreement hereto including purchase order issued by you. You object, and refuse to assent, to the inclusion of any different, conflicting or additional terms in these Terms unless expressly agreed to in writing by us.
- Fulfillment of the Agreement, Applicable Law, Legal Costs.
The laws of California, excluding California’s choice of law rules, and applicable federal United States laws govern these Terms. The exclusive venue for any dispute related to this Agreement will be the state or federal courts located in Alameda County, California, and each party consents to personal jurisdiction in these courts. The parties exclude application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.
Waiver by either of us of the enforcement of any obligation or right under these Terms will not be deemed as a waiver, nor prevent either of us from the right of later enforcement; the delay by either of us exercising any power under these Terms will not be interpreted as a waiver to such power. If any of the clauses of these Terms was declared null and void, it will be removed or limited to a lesser extent in order to keep these Terms in force.
- Negotiation Basis.
Both of us agree and accept that the exclusions of guarantees and limitations of liabilities or remedies under these Terms have been negotiated by us and have been taken into account and have been stated in the Terms and that it has been the will of each of us to include them under the Terms herein contained.
- Complete Contract.
These Terms, together with any Referenced Agreements, constitute the complete contract between us with regard to the matter object of these Terms.