COHESIVE NETWORKS LLC A WHOLLY OWNED SUBSIDIARY OF COHESIVE FLEXIBLE TECHNOLOGIES CORPORATION
VNS3® PRODUCTION SOFTWARE SUBSCRIPTION LICENSE AGREEMENT
The terms and conditions contained herein constitute a legal agreement. This agreement (“Agreement”) contains the entire agreement between “Licensee” and Cohesive Flexible Technologies Corporation (“Cohesive Networks”) with respect to the terms and conditions described herein.
READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING AND INITIALIZATION OF THE VNS3 SOFTWARE. Such use of the VNS3 Software, constitutes acknowledgment that:
The person installing and initializing the VNS3 Software is authorized to do so by the individual or entity responsible for entering into this agreement (“Licensee”), and by doing so each such individual, is confirming and acknowledging acceptance of this agreement by Licensee.
If Licensee does not agree with these terms and conditions, do not use the Software, and contact Cohesive Networks to terminate the product Subscription Payments (as defined below).
1. License Grant: Cohesive Networks grants Licensee a limited, non-exclusive license to use the accompanying software programs, known as “VNS3” (the “Software”) and related explanatory written materials subject to the terms and restrictions set forth in this Subscription License Agreement. Licensee is not permitted to use the Software in any manner not expressly authorized by this License. Licensee acknowledges and agrees that ownership of the Software and all subsequent copies thereof, regardless of the form or media, are held by Cohesive Networks. The terms of this License will govern any Software upgrades provided by Cohesive Networks that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
2. Term of Agreement: This License is effective until terminated. The License will terminate automatically for failure to make Subscription Payments in advance, or for failure to comply with any of the limitations or other requirements described herein. At termination, Licensee shall cease all use of the Software and destroy all copies, full or partial of the Software.
3. Ownership Rights: The Software and related explanatory written materials are protected by United States copyright laws and international treaties. Cohesive Networks, third party component providers, and open source component providers own and retain all right, title and interest in and to the Software and related explanatory written materials, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Your possession, installation, or use of the Software and related explanatory written materials does not transfer to you any title to the intellectual property in the Software and the related explanatory written materials, and you will not acquire any rights to the Software and to the related explanatory written materials except the limited right to use it as expressly set forth in this Agreement.
a. No Reverse Engineering: Licensee agrees that it will not (and will not permit others to) gain root access to virtual images, reverse compile, disassemble object code versions, components, or undertake similar activities related to the other party’s software; or otherwise create, or attempt to create or permit, allow, or assist others to access the software code of the other party’s products or services.
b. Open Source Software: Cohesive Networks affirms that any software included with the Software that is subject to a third party’s Open Source License is provided by Cohesive Networks without modification, and with necessary measures taken to comply with the terms and conditions of each such Open Source license. Open Source licenses have been made available at the Cohesive Networks Open Source website, https://www.cohesive.net/termslegal/open- source.
4. Use of Name and Trademarks: Licensee shall not use the name, trade names or trademarks of Cohesive Networks or any of its affiliates in any advertising, promotional literature or any other material, whether in written, electronic or other form, distributed to any third party, except in the form provided by Cohesive Networks, and then solely for purposes of identifying Cohesive Networks software.
5. Subscription Payments. Subscription Payments for Software licenses are due on or before the first day of each month calculated using the published prices on the day each license key is delivered to Licensee, unless agreed otherwise in writing.
6. Restrictions: Except as provided in this Agreement, Licensee may not rent, lease, lend, redistribute or sublicense the Software. Licensee may not copy the Software except to make archival or backup copies, provided that the backup copy must include all copyright or other proprietary notices contained on the original. Licensee may not copy the related explanatory written materials. Licensee acknowledges the Software is not intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, life support machines or other equipment in which the failure of the Software could lead to death, personal injury or severe physical or environmental damage.
7. Transfers: Licensee may transfer all its limited rights to use the Software and related explanatory written materials to another person or legal entity provided this Agreement, the Software including all copies, updates and prior versions, and the related explanatory written materials are transfered to such person or entity (Transferee), that Licensee retain no copies, including copies stored on the computer, and that Licensee retains written evidence that Transferee accepts the terms of this Agreement.
8. Exclusion of Warranties: THE SOFTWARE IS PROVIDED TO LICENSEE ‘AS IS’, AND ANY USE BY LICENSEE OF THE SOFTWARE WILL BE AT LICENSEE’S SOLE RISK. Cohesive Networks makes no warranties relating to the Software and expressly disclaims all warranties, express or implied, including without limitation those of merchantability, fitness for a particular purpose and noninfringement. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
9. Limitation of Liability: IN NO EVENT SHALL COHESIVE NETWORKS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF COHESIVE NETWORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Cohesive Networks’ total liability for all damages exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
10. Export Law Assurances: Licensee may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries (currently Cuba, Iran, North Korea, Sudan, and Syria) or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Software, Licensee represents and warrants that it is not located in, under control of, or a national, or resident of any such country, or on any such list.
The U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) under the Export Administration Regulations (“EAR”) has determined that the Export Control Classification Number (“ECCN”) for VNS3 is 5D002.c.1. BIS stated in CCATS Z1586458 the software is eligible for EAR license exception Encryption Commodities, Software, and Technology (“ENC”) under 15 C.F.R. §§ 740.17(a) and (b)(2)(i)(A).
11. United States Government: The Software and related explanatory written materials are ‘Commercial Items’ as that term is defined at 48 C.F.R. 2.101, consisting of ‘Commercial Computer Software’ and ‘Commercial Computer Software Documentation’, as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government Licensees; (a) only as Commercial Items and (b) with only those rights as are granted to all other Licensees pursuant to the terms and conditions herein.
12. Governing Law: This Agreement is governed by the law of the State of Illinois, without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
13. Severability: If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions of this Agreement shall not in any way be affected or impaired.
14. Entire Agreement: This Agreement is the entire agreement between Licensee and Cohesive Networks concerning the Software and all related explanatory written materials, and supersedes any other prior or contemporaneous agreements or communications with respect to the Software and related explanatory materials, whether written or oral. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Cohesive Networks. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by a duly authorized representative of Cohesive Networks.
Should Licensee have any questions concerning this Agreement, or if Licensee desires to contact Cohesive Networks for any reason, please write to Cohesive Networks, LLC, 20 North Wacker Drive, Suite 1200, Chicago, IL 60606, or via email to Support@Cohesive.net.