Cognata’s NON-EXCLUSIVE End User License Terms and Conditions (the “Terms”)
BY AGREEING TO A DOCUMENT INCORPORATING THESE TERMS (AN “ORDERING DOCUMENT” AS DEFINED BELOW) YOU (AS DEFINED BELOW) AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN YOU AND COGNATA LTD. (“COGNATA”) AS TO ANY COGNATA PRODUCTS AND SERVICES PROVIDED (OR MADE ACCESSIBLE) OR TO BE PROVIDED (OR MADE ACCESSIBLE) TO YOU AS SET FORTH IN THE ORDERING DOCUMENT. AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, AND THESE TERMS TOGETHER CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND COGNATA (THE “PARTIES”) AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.” IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDERING DOCUMENT AND THESE TERMS, THESE TERMS SHALL PREVAIL UNLESS THE ORDERING DOCUMENT EXPRESSLY PROVIDES THAT IT IS MODIFYING THESE TERMS. COGNATA RESERVES THE RIGHT TO UPDATE, AMEND, AND/OR MODIFY THESE TERMS FROM TIME TO TIME BY POSTING NEW TERMS ON ITS WEBPAGE (www.cognata.com) (“NEW TERMS”). tHE new terms will not apply to previously ordered items, but only to items ordered after the date SUCH TERMS HAVE BEEN POSTED.
Definitions
In these Terms the following terms shall have the meaning set out next to them (other terms are defined in other Sections):
“Agreement Period” as defined in Section 10.
“Cognata Cloud” means the remote cloud service of the Cognata Software (SaaS). “cloud worker instance” means a virtual machine which runs the Cognata Software in the cloud. The components of the Cognata Cloud which will be made accessible You are set out in the Ordering Document. If the Ordering Document only refers to the Cognata Cloud and does not specify any specific components it means that the standard package is made accessible.
“COGNATA PLATFORM” means all of the following: (i) the Cognata Cloud; (ii) the Cognata Station, and (iii) the Output.
“Cognata Reseller” means an entity authorized by Cognata to resell to end user customers licenses to the Cognata Station or right to use the Cognata Cloud.
“Cognata Software” means Cognata’s simulation software solution for developing, testing and validating AV and ADAS systems and their sensors (as well as for other transportation solutions, such as urban traffic planning), including all those workarounds, bug fixes, corrections, modifications, new releases, and new versions of the Cognata software which will be made available to You. The Cognata Software will be made available to You in the form of Cognata Cloud (if ordered) or in the form of Cognata Station (if ordered).
“Cognata Station” means a binary executable form of the Cognata Software which will be locally deployed on Your workstation. The components of the Cognata Station which will be provided to You are set out in the Ordering Document. If the Ordering Document only refers to the Cognata Station and does not specify any specific components it means that only the standard package is provided.
“Company Software” or “Your Software” means Your software which You shall connect to the Cognata Software for the purpose of simulating Your software.
“Derivative Work” means a work based upon one or more preexisting works, such as a translation, adaptation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. Likewise, a work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship is considered a Derivative Work. It is agreed and clarified that a software or computer code which You will develop which are based on the Output or conclusions which You will draw based on the Output are not considered Derivative Work of the COGNATA PLATFORM.
“Documentation” means the official technical specifications and usage materials of the Cognata Software which Cognata publishes in respect of the Cognata Software.
“Intellectual Property Rights” means: (i) patents, patent applications and patent rights, including any and all continuations, division, reissue or extensions thereof and all rights associated with the foregoing; (ii) rights associated with works of authorship, including copyrights and copyright applications and mask work rights whether or not registered; (iii) rights relating to the protection of trade secrets; (iv) design rights and industrial property rights; (v) any other proprietary rights relating to intangible property and any other intellectual property rights recognized by applicable law including trademarks, service marks and applications thereof, trade names and packaging and all goodwill associated with the same; and (vi) all rights to sue for any infringement of any of the foregoing rights and the right to all income, royalties, damages and payments with respect to any of the foregoing rights.
“Named User(s)” means those of Your employees who are authorized by You to access and/or use (“Use”) the Cognata Software on Your behalf. You will identify these Named Users by name, and only those identified and registered in a database kept by Cognata may Use the Cognata Software. For clarity, the Named Users do not have a right of their own to Use the Cognata Software, but rather they shall be Using the Cognata Software on Your behalf. Use of the Cognata Software by the Named Users is deemed as Use by You.
“Ordered Copy” means a copy of Cognata Station as set out in Ordering Document.
“Ordering Document” means a document issued by Cognata to You stating the items which You ordered and incorporating these Terms by reference.
“Output” means any and all the images and/or video and/or other media and/or other data generated by the Cognata Software as a result of Your (including for the avoidance of doubt, Your Named Users’) Use of the Cognata Software.
“Services” means Set Up, maintenance and support, and professional services ordered by You.
“Set Up” means the services/tasks (if any) set out in Ordering Document under set up.
“You” or “Your” means the entity who executed the Ordering Document and ordered the products and services set out in the Ordering Document.
Use of the Cognata Software
Use of the Cognata Software.
Cognata Station. Subject to Your compliance with the terms and conditions of the Agreement (including Your compliance with Your payment obligations as set out in the Ordering Document), Cognata hereby grants You in respect of each Ordered Copy a limited, non-exclusive, non-transferable, non-assignable (by operation of law or otherwise), non-sub-licensable and revocable license to Use such Ordered Copy only as an end user, only during the license period granted by Cognata in the Ordering Document with respect to such Ordered Copy, for the number of Named Users for which a license was acquired, as set out in the applicable Ordering Document. You shall not Use any Ordered Copy after the earlier of: (i) the termination of the Agreement, (ii) the expiration of the Agreement, or (iii) the expiration of the license period of such Ordered Copy; and You shall delete all copies of the Cognata Station which Cognata did not authorize You to use (or which it authorized You to Use but the authorization expired or terminated).
Cognata Cloud. Subject to Your compliance with the terms and conditions of the Agreement (including Your compliance with Your payment obligations as set out in the Ordering Document), Cognata hereby grants You in respect of the Cognata Cloud (if ordered) a limited, non-exclusive, non-transferable, non-assignable (by operation of law or otherwise), non-sub-licensable and revocable right to Use the Cognata Cloud only as an end user, only during the period of Use authorized by Cognata in the Ordering Document, for the number of cloud servers, cloud worker instances and number of Named Users set out in the Ordering Document. You shall not Use the Cognata Cloud after the earlier of: (i) the termination of the Agreement, (ii) the expiration of the Agreement, or (iii) the expiration of the authorization (if any) granted by Cognata to You to Use the Cognata Cloud.
The Cognata Station connects with the Cognata Cloud and allows certain limited Use of the Cognata Cloud. Accordingly, if You only ordered a license(s) to the Cognata Station, then the terms and conditions herein governing the Use of the Cognata Station by You (including for the avoidance of doubt, the disclaimer of representations and warranties and limitation of liability) also govern the Use by You through the Cognata Station of the Cognata Cloud.
Internal Use. You shall Use the COGNATA PLATFORM only for Your internal business use.
Not a Sale. For the avoidance of doubt entering into the Agreement does not constitute a sale, but a grant of a license/right to Use the Cognata Software in accordance with the terms and conditions of the Agreement. Other than the right to Use the Cognata Software in accordance with the license/right granted herein, You do not and shall not acquire any rights in or to or related to the Cognata Software (including for the avoidance of doubt in or to the Intellectual Property Rights therein), express or implied.
Reservation of Rights. All rights not expressly granted by Cognata in the Agreement with respect to the Cognata Software are hereby expressly reserved by Cognata.
Restrictions. You hereby undertake that You shall not (and You have no right to):
sell, rent, lease, lend, sublicense, outsource, host, act as a service bureau, assign, timeshare, disseminate, or distribute the Cognata Software (or any portion thereof) to any third party;
reverse engineer, disassemble, or decompile the Cognata Software (or any portion thereof) or otherwise attempt to discover the source code, the algorithm, workflows, and/or non-literal aspects (such as the underlying structure, sequence, organization, and interfaces) of the Cognata Software (or any portion thereof);
create Derivative Works of (and/or based upon) the Cognata Software (or any portion thereof);
copy, reproduce or modify the Cognata Software (or any portion thereof);
Use the Cognata Software (or any portion thereof) to build, create or generate products or services directly competitive with the Cognata Software;
Use the Cognata Software (or any portion thereof) in a manner other than as specifically permitted by Cognata (including Using it in excess of the authorization granted by Cognata);
disable, tamper with, or otherwise attempt to circumvent any security or access control mechanism of the Cognata Software (or any portion thereof) and/or any billing or metering mechanism, verification methods, or any parts thereof;
send, introduce or store viruses, Trojan horses, worms, malicious code or other malware through or on the Cognata Software;
publish or disclose to third parties any evaluation or benchmarking of the Cognata Software;
alter, destroy, or otherwise remove any proprietary notices or labels on or embedded within the Cognata Software (or any portion thereof);
take any action that requires any portion of the Cognata Software to be subject to end user rights incompatible or inconsistent with the Agreement;
interfere with or disrupt the integrity or performance of the cloud environment which hosts the Cognata Software;
attempt to do or permit anyone to do any of the above (a-l).
Installation of Ordered Copies. Prior to the installation of Ordered Copies (including without limitation any workarounds, bug fixes and new versions which You shall receive under Support, as defined below), You will run those acceptance tests which You believe are required to meet Your requirements in respect of the installation and use of these Ordered Copies.
SDK/API. To the extent an SDK/API is provided by Cognata You may modify, alter, translate, add to or adapt the SDK/API (if any is provided) solely for the purpose of interoperability of the Your Software with the Cognata Software.
Company Materials and Company Equipment. You undertake that Your Software and any and all data and materials (collectively, “Company Materials” or “Your Materials”) which You will connect to, run on, process on, transmit to, and/or upload (collectively, “Process”) on the Cognata Cloud is either owned by You, or You have a right to use such Company Materials in connection with the Cognata Cloud. You are responsible that all Your Materials will not contain any personal information. You hereby grant Cognata and the cloud service provider on which Cognata hosts (or will host) the Cognata Cloud the right to Process Your Materials but solely for the purpose of providing the Cognata Cloud service, as determined by Cognata’s reasonable judgment. Cognata is not responsible for any actions and inactions of third parties related to such Processing, including the actions or inaction of the cloud service provider, or the network through which You shall Process Your Materials or download the Output. You retain all ownership and Intellectual Property Rights in Your Materials. You are responsible for the operation, performance and security of Your equipment, networks and other computing resources used by You or any of Your Named Users to connect to or otherwise utilize the Cognata Cloud and/or Cognata Station.
Named Users/Keys. Use of the Coganta Software by You is limited to the number of Named Users which Cognata authorized You to Use with the Cognata Software. You shall not allow anyone other than the Named Users to Use the Cognata Software. You are responsible for the compliance of the Named Users with the terms and conditions of the Agreement, including the restrictions and limitations that apply to Your Use of the Cognata Software. Any act or omission by the Named Users in connection with the Cognata Software and/or in connection with the Agreement shall be deemed as Your act or omission and accordingly any breach by the Named Users of the Agreement shall be deemed to be a breach of the Agreement by You. Use of the Cognata Software may require the use of a particular key (the “Key“). You shall keep in strict confidence the Key, and You are responsible for any and all activities and actions done with such Key and/or under such Key, including without limitation, any unauthorized use of the Key by a third party, or by a person who is not a Named User. In collecting the details of the Named Users, Cognata will act as a data processor and will act on the Named Users’ instructions concerning the treatment of their personal data. You are responsible to provide any notices and obtain any consents to allow Cognata to use the Named Users’ email addresses and those related to the Named Users’ use of the Cognata Software, including those related to the collection, use, processing, transfer and disclosure of personal data.
Third-Party Components, Open-Source and Minimum Requirements. The Cognata Software may include certain third-party components which are embedded in the Cognata Software, such as maps. The third-party components (as opposed to open-source software) (“Third-Party Components”) are to be Used by You under and in accordance with the terms and conditions of the Agreement applicable to the Cognata Software. The Third-Party Components may not be Used separately from the Cognata Software, and You shall not directly access any Third-Party Components other than with or as part of the Cognata Software. Cognata will pass to You any warranty Cognata receives from the suppliers of such Third-Party Components (if any). Notwithstanding anything else in the Agreement to the contrary, Cognata makes no warranty, representation, or indemnification in respect of the Third-Party Components. Other than passing to You the warranty Cognata received in respect of such Third-Party Component, in no other event shall Cognata be liable with respect to these Third-Party Components. Open-source software (applicable to Cognata Station if ordered) is to be Used pursuant to the applicable open-source software license. To the extent applicable, information about the open-source software may be found (i) in a file accompanying the SDK/API and/or the Cognata Station; or (ii) in the Documentation. Notwithstanding anything else in the Agreement to the contrary, Cognata makes no warranty, representation, or indemnification in respect of any open-source software, and in no event shall Cognata be liable with respect to any open-source software. Third party applications or services, such as cloud services, may be appropriate or necessary in order to Use the Cognata Cloud (“Minimum Requirements“). These Minimum Requirements are governed by the terms and conditions specified by the third-party owner, author or provider of such Minimum Requirements (such as Google’s Acceptable Use Policy or Microsoft Azure Acceptable Use Policy), and You are responsible for Your compliance with these terms. In no event shall Cognata be liable with respect to these third-party applications or services. In addition, the Cognata Software may contain features, functions or interfaces that enable interoperation with or access to third party products, services or content (such as Simulink). You acknowledge and agree that such third party products, services or content are not part of the Cognata Software and are not warranted, maintained or supported by Cognata.
Review. Cognata shall have the right to perform no more than once a year an audit of Your compliance with the Agreement (“Audit”). The right to audit will last both during the period of Use in respect of the Cognata Software granted by Cognata to You as well as after its expiration/termination until three (3) years have passed from the termination/expiration of the Agreement. Such Audit will be conducted, subject to prior reasonable notice, by a professionally qualified independent auditor preferably of one of the Big 4 accounting firms (Deloitte, PWC, E&Y or KPMG) (“Auditor”). You shall cooperate with the Auditor and provide it with any documents, records and books which are reasonably necessary to allow the Auditor to determine whether You complied with the terms and conditions of the Agreement. The costs of the Audit will be borne by Cognata, unless the report prepared by the Auditor reveals that You did not comply with the Agreement, in which case You shall reimburse Cognata’s Audit costs as well as pay any amount underpaid by You (for the avoidance of doubt, the foregoing does not exhaust Cognata’s remedies in the case of non-compliance or partial non-compliance). In addition to the Audit, You hereby agrees to provide Cognata all relevant records and information that are reasonably necessary to allow Cognata to determine whether You are using the Cognata Software in accordance with the Agreement.
Statistical Usage Information. Statistical usage information of the Cognata Cloud by You collected by Cognata in an anonymized and aggregated manner shall be the sole property of Cognata.
Services
In order to meet Your needs (if any) from the Cognata Software, the Parties (You and Cognata) agree that Cognata will perform the preparations/adaptive/development work stated in Ordering Document under Set Up (if any is stated), and such preparatory/adaptive/development work will be done in accordance with the Set-Up plan stated therein (if any).
You have no rights (including no Intellectual Property Rights) in any of the features/preparatory work/adaptive/development work developed/added/provided by Cognata to meet Your requests/needs: (a) regardless of the fact that You may have requested Cognata to develop/add/provide these features/adaptation of the Cognata Software to meet such needs and regardless if these features/preparatory work/adaptive/development work were formally ordered by You or not; and (b) regardless if You provided any information, data, and feedback to Cognata in connection with these features/preparatory/adaptive/development work and their development/addition/provision. You are not entitled to any royalty or other form of payment if anyone else uses the features/adaptations/development work. These features/adaptations/development work are and will form part of the Cognata Software, and are covered by the term Cognata Software, and accordingly all right title and interest in these features/adaptations/development work (including Intellectual Property Rights) vest solely in Cognata.
If You acquired support and maintenance for the Cognata Software (“Support”), Cognata will provide the Support in accordance with the then-current support policy of Cognata. The current support policy is attached as Appendix A.
Order, Fees, Taxes and Payment Terms
The Ordering Document sets out: (i) the items ordered by You, (ii) the fees for such items and (iii) the payment terms in respect of such items (the fees for items ordered are referred to collectively as the “Fees”). The Fees are non-cancelable, and any amounts paid are non-refundable, except as expressly provided in the Agreement.
You agree and undertake to pay all sales, use, consumption, VAT, GST, and all other taxes, duties or governmental charges that are (or will be) imposed upon and/or which are based on: the Fees, and/or on the licenses and/or right to Use the Cognata Software, and on the Services (collectively “Taxes”).
Cognata will invoice You the Fees and Taxes, and You shall pay these Fees and Taxes in accordance with the payment schedule in the Ordering Document. If no such payment schedule is stated in the Ordering Document the Fees and Taxes shall be paid within thirty (30) days of the invoice date. Timely payment is of the essence of this Agreement. You shall pay the Fees and Taxes without deduction, setoff, and counterclaim. Unless agreed otherwise in writing, the Fees and Taxes shall be paid in USA currency. Without derogating from any right or remedy of Cognata, late payments are subject to an interest charge of 1% per month. For the avoidance of doubt, the foregoing does not exhaust Cognata’s remedies in the case of Your failure to pay on time.
Intellectual Property in the Cognata Software
Cognata is the proprietor of the Cognata Software. Cognata retains all right title and interest in and to the Cognata Software including any and all Intellectual Property Rights therein, and likewise retains all right, title and interest in and to any Derivative Works of the Cognata Software including any and all Intellectual Property Rights therein. Except for the limited license/right to Use the Cognata Cloud and/or Cognata Station as expressly authorized by Cognata in the Agreement, You shall have no other right title or interest in or to the Cognata Software.
Confidential Information.
In connection with the Agreement, either of us (You or Cognata) (in this capacity, a “Receiving Party”) will receive from the other Party (in this capacity, a “Disclosing Party”) or will have access to information, data, materials and computer code (collectively, “Information”) (actual access is deemed as disclosure) that the Disclosing Party considers confidential (hereinafter “Confidential Information”, such term shall include without limitation all copies, extracts, derivatives and portions thereof).The Disclosing Party’s Confidential Information shall not include Information which the Receiving Party can prove: (i) was already lawfully known to the Receiving Party before it was disclosed to it or before it had access to such Confidential Information. This exclusion shall not apply with respect to Information which the Receiving Party became aware of under a previously executed confidentiality undertaking towards the Disclosing Party or under a previously executed agreement with the Disclosing Party, such as an evaluation license; (ii) was (or will be) independently developed by the Receiving Party without access to or use of Confidential Information of the Disclosing Party as proven by written records, (iii) was (or will be) generally known to the public without breach of the Agreement by the Receiving Party or anyone on its behalf, or (iv) was (or will be) lawfully obtained from any third party who did not acquire or disclose such Information in breach of any obligation to the Disclosing Party.It is agreed that the Confidential Information of Cognata shall be deemed to include but shall not be limited to the Cognata Software and the Output, and the exclusions stated in the paragraph above shall not apply to the Cognata Software and the Output.
The Receiving Party shall not disclose the Confidential Information of the Disclosing Party to any third party, except its employees and independent contractors (“Representatives”) who have a need to know the Disclosing Party’s Confidential Information for the purpose of performance of the Agreement/exercise of the Receiving Party’s rights hereunder, and who are likewise subject to written agreements containing confidentiality and non-use obligations substantially similar to those set forth herein. The Receiving Party shall ensure the compliance of its Representatives with the terms of this Section Any breach of the Agreement by a Receiving Party Representative shall be deemed as a breach of the Agreement by the Receiving Party. For the avoidance of doubt (and as stated in Section 2) it is agreed that Your Materials will be Processed by the cloud service provider on which Cognata hosts (or will host) the Cognata Cloud.
The Receiving Party shall at all times take measures to keep the Confidential Information of the Disclosing Party confidential which are similar to those that the Receiving Party takes in respect of its own Confidential Information of like importance, which efforts and measures shall be no less than reasonable.
The Receiving Party shall not make any use of the Confidential Information of the Disclosing Party except in connection with the performance of the Agreement and/or in accordance with its rights hereunder. Notwithstanding the above, any Confidential Information provided by You as part of the Set Up may be used by Cognata for such purpose, and likewise any other Confidential Information provided by You for the purpose of adding features/adapting the Cognata Software may be used by Cognata for such purpose.
The Receiving Party shall promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information of the Disclosing Party by its Representatives and will cooperate with the Disclosing Party in every reasonable way to assist the Disclosing Party to regain possession of the Disclosing Party’s Confidential Information to prevent its further unauthorized use or disclosure.
Upon the written request of the Disclosing Party, all Confidential Information of the Disclosing Party in the possession of the Receiving Party shall be returned to the Disclosing Party or destroyed.
In the event the Receiving Party becomes legally compelled by law, rule regulation or court order, or any other governmental body having similar authority over the Receiving Party to disclose any portion of the Confidential Information of the Disclosing Party, the Receiving Party shall to the extent permitted by applicable law provide the Disclosing Party with prompt notice thereof and the Receiving Party shall cooperate with the Disclosing Party to reduce the scope of the disclosure. The Receiving Party may disclose only that portion of the Confidential Information of the Disclosing Party which it is legally required to disclose. In addition, if the shares of the Receiving Party are traded on any recognized stock exchange, the Receiving Party may disclose that portion of the Confidential Information of the Disclosing Party which it is legally required to disclose.
The confidentiality and non-use obligations of the Receiving Party shall continue for a period of five (5) years from the date of disclosure and shall survive the expiration (or termination) of the Agreement. In addition, and with respect to Confidential Information of the Disclosing Party which also qualifies as a trade secret under Israeli law, the confidentiality and non-use obligations herein shall survive the expiration (or termination) of the above five (5) years period and shall continue in full force and effect until such Disclosing Party’s Confidential Information no longer qualifies as a trade secret under Israeli law.
For clarity, and with respect to the subject matter of the Agreement: the Cognata Software, the terms and conditions of this Section 6 shall prevail over any non-disclosure agreement previously executed between the Parties.
7. Representations, Warranties and Disclaimers.
Cognata warrants You that during a period of three (3) months following the date of the Ordering Document (“Ordering Document Date”) the Cognata Software will operate in all material aspects as described in the Documentation provided to You prior to the Ordering Document Date (the “Warranty” and “Warranty Period“ respectively). The Warranty will be subject to: (a) the Cognata Software having been properly Used by You at all times in accordance with the applicable Documentation; and (b) the Cognata Software not having been modified by persons other than Cognata. Your sole remedy and Cognata’s entire obligation and liability for a Warranty claim under this Section 7(A) is for Cognata to make commercially reasonable efforts to provide a work around, bug fix, or correction for reproducible defects in the Cognata Software reported to Cognata in writing, all at no additional charge to You; provided, however, that (A) the Warranty claim is made in writing within the Warranty Period; and (B) Cognata determines that the defect is not due to Your or Your Named Users’ actions. If Cognata concludes that it cannot correct or provide a work around or bug fix to the reproducible defect in the Cognata Software in a commercially reasonable way, it may inform You of such conclusion, and following such written notice, if the Cognata Software does not materially perform the functions described in the Documentation due to such reproducible defect, which Cognata informed You that it cannot correct or provide a workaround or bug fix in respect of such reproducible defect, then following such notice by Cognata, You may inform Cognata within thirty (30) days after such notice, that You end the Use of the Cognata Software, and if You pre-paid any fees for the period after such termination date, You will receive a prorated portion of any prepaid fees for the period of time after the termination date. Upon Your notice that You end the Use of the Cognata Software, Your right to Use the Cognata Software shall terminate.
Both Parties represent (each for itself) that they have the capacity to enter into the Agreement, and the person executing it on their behalf is authorized to bind them by the terms and conditions hereof.
You acknowledge that Cognata did not (and does not) represent, warrant and/or undertake that the Cognata Software will be precise, secure, meet Your requirements, accurate, error free, available at all times, uninterrupted, WILL OPERATE IN COMBINATION WITH ANY AND ALL OF THE COMPONENTS OF YOUr SOFTWARE, non-iNfringing or that all defects in the cognata software will be corrected. OTHER THAN COGNATA’S representations and WARRANTies IN SECTIONs 7(A) and 7(B) ABOVE, COGNATA does not make any other representations and warranties (EXPRESS, IMPLIED OR STATUTORY) IN RESPECT OF THE COGNATA PLATFORM and/or the use of the cognata platform. YOU further ACKNOWLEDGE THAT COGNATA DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATION FACILITIES, INCLUDING THE INTERNET, AND THAT THE COGNATA CLOUD MAY BE SUBJECT TO LIMiTATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF A CLOUD SERVICE. COGNATA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
You haVE sole responsibility for any and all conclusions, decisions and/or actions taken by you in reliance on the Cognata PLATFORM. You assume all responsibilities for the selection of the Cognata platform to achieve its intended results, and for any the use of the results (Output) obtained by you. You acknowledge that any and all actions and/or decisions and/or conclusions based on the Cognata PLATFORM must be thoroughly tested and validated by You before being incorporated, distributed or otherwise used or relied upon. In no event will cognata be responsible for your end product, application or any other use which will be made with output (such as its use for urban traffic planning)..
Cognata makes no representations or commitments and shall have no liability or obligation whatsoever in relation to the Third-Party Components, open-source software, Minimum Requirements, and/or any third-party communication networks
8. IP Indemnification.
SUBJECT TO THE LIMITATION THAT the aggregate liability of Cognata under this Section 8 (REGARDLESS IF THERE WAS ONE OR MORE INFRINGEMENT CLAIMS AGAINST YOU) SHALL NOT exceed the amount paid by You to cognata in respect of the coganta software during a term of one (1) year prior to the date in which the Claimant(S) filed his/her/its claim, Cognata shall defend, indemnify and hold You harmless from and against any claim by a third party (“Claimant”) in court against You that Your Use of the Cognata Software infringes the Intellectual Property Rights of such Claimant (the “Claim”).
You undertake to provide Cognata prompt written notice of such Claim (including any threat, warning or notice prior to such Claim in which the Claimant alleged that Cognata Software infringes his/her/its Intellectual Property Rights) giving Cognata sufficient time to enable it to defend against such Claim (Your notice will describe the Claim in reasonable detail, will include copies of all available material of the Claim, and will indicate the estimated amount claimed by the Claimant, if any. Your failure to provide such notice thereof in a reasonably practical and prompt manner to Cognata shall relieve Cognata of any obligations owed hereunder to the extent that Cognata has been materially prejudiced by Your failure in giving such prompt notice).
Cognata will be relieved of its obligations hereunder if You do not permit Cognata to direct and control the defense of the Claim as well as any settlement with the Claimant. However, any settlement or compromise of any such Claim requiring You to admit liability, pay money, or take (or refrain from taking) any action, will require Your prior written consent, which consent may not be unreasonably withheld or conditioned by You.
Cognata will be relieved of its obligations hereunder to the extent that the liability to the Claimant: (a) is attributable to the negligence, recklessness, willful misconduct, fraud, or misrepresentation by You; (b) is attributable to the modification by You of the Cognata Software (or any portion thereof); or (c) is attributable to the combination of the Cognata Software (or any portion thereof) with anything not supplied by Cognata hereunder; or (d) is attributable to Cognata’s compliance with Your designs, or instructions; or (e) is attributable to the Use by You of a version of the Cognata Software which has been superseded, if the infringement claim could have been avoided by using the then-current version of the Cognata Software which was made available to You; or (f) is attributable to Your Software.
You shall have the right to participate at Your own expense in the defense of a Claim, including any related settlement negotiations.
If a Claim is brought to Cognata’s attention, Cognata may choose, at its sole expense to do one of the following: (a) procure a license from the Claimant so that the Cognata Software does not infringe his/her/its Intellectual Property Rights; or (b) modify the infringing element to make it non-infringing without materially reducing its functionality; or (c) replace the infringing element with a non-infringing, functionally-equivalent alternative. If none of the options above are commercially reasonable in Cognata’s opinion, Cognata may elect to terminate the Agreement at Cognata’s sole discretion. In such case, Cognata shall refund to You a prorated portion of any prepaid fees for the period of time after the termination date.
The above provisions provide Your exclusive and sole remedy for any infringement claim (including liability) in respect of the Cognata Software.
9. Exclusions and Limitation of Liability.
EXCEPT FOR MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER ISRAELI LAW:
In no event shall COGNATA be liable for incidental, indirect, special, exemplary, punitive AND/or consequential damages (however arising) AND/OR FOR loss of profit, LOSS OF USE, LOSS OF DATA, loss of revenues, loss OF savings, business interruption, OR loss of reputation arising out of or in connection with the Agreement, AND/OR THE USE OF THE COGNATA PLATFORM.
YOU agree THAT If You haVE (OR WILL HAVE) any basis for recovering damages (including breach of the Agreement), YOUR EXCLUSIVE REMEDY AND THE maximum aggregate liability of Cognata FOR ANY AND ALL DAMAGES AND LOSSES ARISING out of or in connection with the Agreement, OR THE USE OF THE COGNATA PLATFORM, SHALL NOT EXCEED the amounts paid by YOU TO COGNATA In respect of the RIGHT/LICENSE TO USE THE cognata software in THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM LESS ANY AMOUNTS PAID BY COGNATA TO YOU IN CONNECTION WITH THE AGREEMENT OR the USE OF THE COGNATA PLATFORM (including TO any amounts paid or to be paid under sections 7(A) and 8 OF THE AGREEMENT, if any).
YOU AGREE THAT You are NOT ENTITLED TO recover any other damages or losses even if thE ABOVE DAMAGES remedy doesn’t fully compensate YOU for any DAMAGES OR losses or fails of its essential purpose and even if cognata knew or should have known about the possibility of the damages OR LOSSES.
THE ABOVE LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY TO ALL CAUSES OF ACTION AND REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, EQUITY, BREACH OF STATUTORY DUTY, STRICT LIABILITY OR OTHERWISE) AND EVEN IF SUCH DAMAGES OR LOSSES WERE OR COULD HAVE BEEN FORESEEABLE.
YOU AGREE THAT Cognata’s licensors, AND COGNATA’S AFFILIATES, ITS AND THEIR SHAReHOLDERS, directors, OFFICERS, EMPLOYEES, resellers, distributors, representatives, and Services providers shall have no liability of any kind under OR IN CONNECTION WITH the Agreement AND/OR THE USE OF THE COGNATA PLATFORM.
YOU UNDERSTAND AND AGREE THAT IN RETURN FOR YOUR CONSENT TO THE LIMITATION/EXCLUSION OF LIABILITY SET FORTH HEREIN, COGNATA IS ABLE TO OFFER YOU THE RIGHT TO USE THE COGNATA SOFTWARE FOR THE FEES CHARGED BY COGNATA. THIS LIMITATION AND EXCLUSION OF LIABILITY IS IN THE AGGREGATE AND NOT PER INCIDENT. YOU ACKNOWLEDGE AND AGREE THAT You have FULLY CONSIDERED THE FOREGOING.
10. Agreement Period.
The Agreement comes into effect on the Ordering Document Date and unless terminated earlier shall continue until the lapse of all the periods of Use in respect of the Cognata Software granted by Cognata to You (“Agreement Period”) as set out in the applicable Ordering Document.
Termination of the Agreement (or expiration of the Agreement Period) shall be without prejudice to any rights or remedies either Party (Cognata or You, as applicable) may have against the other party, including those set out in the Agreement.
Either party (Cognata or You, as applicable) may terminate the Agreement if the other party breaches the Agreement, and it fails to cure such breach within fourteen (14) days of notice thereof. In addition, Cognata may terminate the Agreement if a receiver is appointed to You, or if You file for or a third party has filed against You, liquidation, bankruptcy, insolvency or analogous proceedings which are not dismissed within 60 days after the receiver’s appointment, or the filing of the liquidation, bankruptcy, insolvency or analogous proceedings. Without derogating from the above, Cognata may suspend the availability of the Cognata Cloud in the event of Your failure to pay any amount due to Cognata and/or the Coganta Reseller, or in the event Cognata reasonably suspects any Use of the Cognata Software by You is inconsistent with the terms and conditions herein.
Cognata may notify You at any time, that any amounts due to the Cognata Reseller are to be paid directly to Cognata (for example, because Cognata terminated its relationship with the Cognata Reseller, or because the Cognata Reseller failed to pay Cognata the fees due), in which event You shall pay these amounts to Cognata directly.
Upon the earlier of the termination of the Agreement (or expiration of the Agreement Period): (i) You shall cease the Use of Cognata Software; (ii) You shall pay Cognata all outstanding Fees and Taxes; and (iii) You shall destroy and permanently erase all copies of the Cognata Station in Your possession or control, and, upon request, forward written confirmation to Cognata that all such copies have been destroyed and permanently erased. If Cognata terminated the Agreement due to Your breach of the Agreement, then Your right to use the Output shall also terminate, and You shall destroy and permanently erase all copies of the Output in Your possession or control, and, upon request, forward written confirmation to Cognata that all such copies of the Output have been destroyed or permanently erased.
In the event of a termination of the Agreement (or expiration of the Agreement Period), all the terms and conditions of the Agreement which by their nature are intended to survive termination/expiration shall survive such termination/expiration: 2B (restrictions), 2H (review), 2I (Statistical Usage Information), 4 (Order, Fees, Taxes and Payment Terms), 5 (Intellectual Property), 6 (Confidential Information), 7 (Representations Warranties and Disclaimers), 8 (Indemnification), 9 (Exclusions and Limitation of Liability), 10B, D, E, F (Agreement Period), and 11 (Miscellaneous).
11. Miscellaneous.
Public Announcement and Name. You agree to a joint public announcement of the Agreement (including Your decision to select Cognata as a vendor). You likewise agree to having Your name mentioned by name and logo in Cognata’s marketing materials.
Force Majeure. A Party (Cognata or You, as applicable) is not responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by it; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of that Party.
Feedback. Cognata shall have all right, title and interest, including, without limitation, all Intellectual Property Rights, to freely use and incorporate into the Cognata Software any suggestions, enhancement requests, recommendations or other feedback provided by You and/or Named User relating to the Cognata Software without any obligation or payment to You (“Feedback”). The right granted herein to the Feedback is perpetual, irrevocable, royalty free, worldwide right (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare Derivative Works of, display, perform and otherwise exploit such Feedback without restriction.
Entire Agreement. The Agreement is the entire agreement between us, the Parties (Cognata and You) regarding the subject matter hereof and supersedes any and all other proposals, communications, verbal or written between the Parties regarding the subject matter hereof. No representation or statement not expressly contained in the Agreement will be binding on any Party. Any and all purchase orders (or other communication) in respect of the Cognata Software and/or services shall be deemed to incorporate the terms and conditions of the Agreement. The terms and conditions in Your purchase order (or other communication) (for the avoidance of doubt, the foregoing is not applicable to the Ordering Document) shall not in any way modify, amend, or add to the terms and conditions of the Agreement. For clarity, Cognata hereby rejects any term, provision or condition in a purchase order (or other communication, except the Ordering Document) which conflicts with, or purport to add to or modify the Agreement; and should Cognata reference the purchase order in its invoice, such reference does not and will not imply acceptance of the terms and conditions of the purchase order.
Amendments. The Agreement may not be modified or amended except in a writing executed by both Parties (Cognata and You).
Waiver. A waiver of any default hereunder or of any of the terms and conditions of the Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition but shall apply solely to the specific event to which such waiver is directed.
Export. The export law of the State of Israel applies to the COGNATA PLATFORM. You undertake to comply with Your local export law as well as Israel’s export control law with respect to the COGNATA PLATFORM. You undertake: (a) not to use the COGNATA PLATFORM for or with any defense or security use product or for or with any dual-use equipment listed in the Wassenaar Arrangement Dual-Use Goods and Technologies list, (b) not to export the COGNATA PLATFORM to Iran, Syria, Iraq or Lebanon; and (c) not to request Cognata to perform any technical assistance that would constitute a defense service.
US Government Restricted Rights. If the Cognata Software is supplied to or purchased by or on behalf of the United States Government, the Cognata Software and Documentation will be deemed to be “commercial software” and “commercial computer software documentation”, as such terms are used in the Federal Acquisition Regulation system. All United States Government end users and all end users on behalf of the United States Government acquire the license/right to Use the Cognata Software with only those rights set forth in the Agreement
Assignment. Cognata may assign its rights or obligations pursuant to the Agreement, upon such assignment it will notify You of such assignment. You agree and undertake not to assign any rights or obligations under the Agreement; any attempted assignment in contradiction to the above shall be null and void.
Invalid Term or Condition. If any part of the Agreement shall be deemed invalid, illegal or unenforceable such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
Governing Law and Jurisdiction. The laws of the State of Israel (without giving effect to its conflict of laws rules) govern all matters arising out of or relating to the Agreement, including without limitation, its validity, interpretation, construction, performance, enforcement, and termination. The United Nations Convention on Contracts for the International Sale of Goods and its provisions shall not apply to the Agreement and its provisions are hereby disclaimed. The competent courts of Tel-Aviv, Israel shall have exclusive jurisdiction with respect to any dispute or disagreement arising out of or relating the Agreement regardless of the cause of action whether in contract, tort or other theory of liability, and the Parties (Cognata and You) hereby consent to their exclusive jurisdiction. Notwithstanding the foregoing, Cognata may in its sole discretion file a claim against You for a breach of the Agreement in any court having jurisdiction over You regardless of the exclusive jurisdiction terms above.
Notices. All notices required or permitted to be given hereunder shall be in writing and in English, and shall make reference to the Agreement, and shall be delivered either by hand, dispatched by prepaid courier, registered mail, or by email, addressed to the relevant Party’s address set out in the Ordering Document. Such notices shall be deemed served on the earlier of: (1) their actual receipt by the addressee, or (2) within seven (7) days of their dispatch, and if delivered by email, one day after it was sent provided no undeliverable message has been generated in respect of such email. The parties (Cognata and You) may give written notice of a change of address, and after notice of such change has been received, any notice shall thereafter be given to such party at such changed address.
Localized Language. By entering into the Agreement, You hereby irrevocably and unconditionally waives any law applicable to You requiring that the Agreement be localized to meet Your language.
THIS AGREEMENT DOES NOT CONSTITUTE A STANDARD FORM CONTRACT UNDER ANY APPLICABLE LAW AND WAS OPEN TO NEGOTIATION BY THE PARTIES. ANY PRESUMPTION OR RULE REQUIRING THE CONSTRUCTION OR INTERPRETATION OF THE AGREEMENT AGAINST THE PARTY DRAFTING THE AGREEMENT SHALL NOT APPLY.
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