Controlup EULA

IMPORTANT – READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE (as  defined below). 

This End-User License Agreement (“Agreement”) is a binding legal agreement between you (“Licensee”)  and the applicable ControlUp Entity specified in the Order (as defined below) (the “Licensor”,  “Company”, “ControlUp”, “we” or “us”) which sets forth the terms and conditions under which the  Licensee is entitled to download, install and use the Software that has been developed and is owned  by ControlUp. This Agreement also applies to, and governs, the executed ordering document (such as  an order form, sales order, proposal, or quote) to which they are attached, hyperlinked, or otherwise  incorporated (the “Order”). 

BY ACCEPTING THE TERMS OF THIS AGREEMENT, (1) THE LICENSEE HEREBY WAIVES, IRREVOCABLY,  ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH  REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON ELECTRONIC RECORDS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW; AND (2) THE  LICENSEE HEREBY AGREES TO THE PROCESSING OF THE PERSONAL DATA IN THE SOFTWARE AS  DETAILED IN THE APPLICABLE DOCUMENT, I.E. THE DATA PROCESSING AGREEMENT (available at: https://controlup.com/privacy/dpa) OR PRIVACY POLICY (available at  https://www.controlup.com/products/controlup/controlup-privacy-policy), AND IS INCORPORATED AS  AN INTEGRAL PART OF THIS AGREEMENT. 

1) Definitions  

a) ControlUp Entities – refers to:  

i) ControlUp, Inc. A Delaware Corporation, having its main place of business at 3141 Stevens Creek  Blvd #41038 San Jose, CA 95117 United States 

ii) ControlUp Technologies Ltd. an Israeli limited liability company, having its main place of business  at Sderot nim 2, Azrieli Rishonim Mall, 4th floor. Rishon LeTsiyon, 7546302, Israel

iii) ControlUp GMBH, a German Corporation having its main place of business at Mazars  Rechtsanwaltsgesellschaft mbH, Theodor-Stern-Kai 1, 60596 Frankfurt am Main Germany  

iv) ControlUp UK Limited, a British Corporation having its main place of business at 37 Broadhurst  Gardens London NW6 3QT United Kingdom 

v) ControlUp PTY LTD an Australian Proprietary Limited company having its main place of business  at c/o YML Group Tower 1, Westfield Shopping Plaza NSW, NSW 2022, Australia 

b) “Licensee” refers to the business entity and/or individual person consenting to, and entering into,  this Agreement. 

c) “Software” refers to the software, in object code format, provided to the Licensee together with this  Agreement, including, without limitation, the Main Console, the Monitor Service, Agents and  ControlUp Backend Servers, the Scoutbees monitoring service (collectively, the “Licensed  Products”), in addition but not limited to (i) third party`s software incorporated therein; (ii) related  explanatory written materials (“Documentation”); and (iii), any patches, updates, modified versions,  additions, service packs and upgrades, if any, which may be provided by the Company from time to  time. 

d) “Licensee Content” refers to any Content and/or Confidential Information submitted or uploaded  to, or transmitted through, the Software, or otherwise provided or made available to ControlUp, by  or on behalf of Licensee. 

e) “ControlUp Content” refers to any Content (excluding Licensee Content) appearing on or in, or  otherwise provided or made available via the Software. 

f) “Third-Party Content” means Content provided by a third party, that interoperates with the  Software, including open source software, but that is not embedded in or required for use of the  Software. 

g) “License Program” refers to a certain combination, marked and chosen by the Licensee when  purchasing a license by executing an Order, including any combination of the following VIR-001-ESSENTIAL, VIR-002-ADVANCED, PE-001-ESSENTIAL, PE-002-ADVANCED, BUND-001-ESSENTIAL, BUND-002-ADVANCED, SDX-001, ELA-001-PLATFORM, VIR-003-ESSENTIAL-CCU, VIR-004-ADVANCED-CCU, VIR-005-ESSENTIAL-ONPREM, VIR-006-ADVANCED-ONPREM. 

h) “Support Services” refers to those support services included in the License Program chosen by the  Licensee. 

i) “Main Console” refers to the IT Management system, known as “ControlUp Real-time DX” or  “ControlUp Edge DX” in the edition stipulated in the License Program the Licensee subscribed for,  that is installed on the Licensee’s Server. 

j) “Monitor Service” refers to an IT monitor element known as “ControlUp Monitor” that is installed  on one or more of the Licensee’s Servers and can run 24/7. 

k) “Agent” refers to any piece of software code ControlUp provides the Licensee (deployed from the  installation package installed with the Main Console, from ControlUp Edge DX or from ControlUp  website, that is installed on all, selected, or none of the Licensee’s End Points. 

l) “Reporting Portal” refers to a web-based portal and its backend providing access to services such as “ControlUp Insights”, “ControlUp Solve”, “ControlUp Scoutbees”, “ControlUp Edge DX” and  “ControlUp Remote DX” offering an operational intelligence solution for monitoring and analysis of  enterprise network environments. 

m) “ControlUp Backend Servers” refers to software, database scripts and configuration elements  providing backend services to the Main Console, the Monitor Service and Reporting Portal. 

n) “Our Servers” refers to servers belonging to ControlUp and/or third party providing Hosting service for ControlUp Backend Servers used by ControlUp. 

o) “End Point” refers to each hardware or virtualized based station monitored by the Main Console,  the Monitor Service and or ControlUp Backend Servers under the terms of this Agreement, including, but not limited to, personal computers, laptops, terminal services, VDI, servers, screens, etc. 

p) “Server” refers to a component of hardware enabling the installation of the Licensed Products on its storage device and the operation thereof. ControlUp acknowledges and agrees that Licensee’s  Servers can be in physical or virtual form as part of Licensee’s established private virtual network as may be provided by a third-party provider (i.e. Amazon Web Services). 

q) “ControlUp User Account” refers to each issuance of a unique username and password enabling  authenticated access to the Main Console and or to the Reporting Portal. 

r) “Named User/s” refers to any individual on Licensee’s behalf who has been authorized by Licensee  to use the Software whether or not assigned with a ControlUp User Account. 

s) “Usage Statistics” refers to any non-identifying, anonymized and encrypted information, data,  reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or  Licensee’s use of the Software and/or ControlUp Content (such as metadata, aggregated data,  analytics, security findings or discoveries, etc.). 

2) Grant of License  

ControlUp grants the Licensee, upon full compliance of the terms and conditions set forth in this  Agreement and any other terms incorporated by reference, a limited, personal, non-exclusive, non transferable, non-sublicensable license during the Term (as defined below) to: 

a) Download, install and use a copy of the Software and ControlUp Content on one or more PC’s,  Servers or mobile devices within the Licensee’s IT network; 

b) Download, install and use a certain amount of Agents on a certain amount of End Points within the Licensee’s organization up to the amount the Licensee subscribed and paid for, as indicated in its License Program. The Agents may be installed by the Licensee solely on End Points and/ or Servers  located at the Licensee’s principal place of business and may not be transferred outside such  premises; 

c) Assign certain amount of ControlUp User Accounts up to the amount the Licensee subscribed and  paid for, as reflected in the License Program; and 

d) Access and use the Software in accordance with this Agreement and any applicable usage rules. For the avoidance of any doubt, it is hereby declared and agreed that the Software and ControlUp  Content is merely licensed to the Licensee, but not sold. ControlUp may, but is not obligated to,  audit and monitor Licensee’s use of the Software and ControlUp Content.

Any Documentation that accompanies the Software is licensed for internal, non-commercial and  reference purposes only. 

3) Account  

In order to access the Software, Licensee must set up a ControlUp User Account. Licensee shall ensure  that all information submitted during the registration process is, and will thereafter remain, complete and accurate. As between ControlUp and Licensee, Licensee shall be solely responsible and liable for maintaining the confidentiality and security of its ControlUp User Account credentials, as well as for all  activities that occur under or in such ControlUp User Account. Personal Data (as defined in ControlUp’s  Privacy Policy available at https://www.controlup.com/privacy-policy/controlup-privacy-policy/ – the  “Privacy Policy”) collected by ConrolUp in connection with the foregoing, shall be processed in accordance with the then-current Privacy Policy, which is hereby incorporated into this Agreement by  reference. 

4) Reservation of Rights and Ownership  

ControlUp Protected Material 

a) ControlUp (and/or its licensors and suppliers, as applicable) is, and shall be, the sole and exclusive  owner of all right, title and interest (including without limitation all Intellectual Property Rights) in  and to ControlUp protected material, which include: (a) the Software; (b) ControlUp Content; (c)  ControlUp’s Confidential Information; (d) any feedback, suggestions, or ideas for or about the  Software or ControlUp Content (collectively, “Feedback”); (e) Usage Statistics; and (f) any  improvements, derivative works, and/or modifications of/to any of the foregoing, regardless of  inventorship or authorship (collectively “ControlUp Protected Materials”). For the avoidance of  doubt, it is acknowledged and agreed that ControlUp (alone and/or together with its affiliates and  service providers) may generate and commercially exploit Usage Statistics, as well as use Licensee  Content for the purpose of enhancing the Software and additional developments, including the  transfer of such Usage Statistics from single-tenant to multi-tenant and vice versa, it being clear that  nothing in this Agreement shall be deemed to prohibit or otherwise limit such activities. 

b) Licensee shall make, and hereby irrevocably makes, all assignments and/or waivers necessary or  reasonably requested by ControlUp to ensure and/or provide ControlUp (and/or its designee(s)) the  ownership rights set forth in this paragraph. 

Licensee Content 

c) As between the Parties, Licensee is, and shall be, the sole and exclusive owner of all Licensee  Content. 

d) Unless the Software specifically requests otherwise, Licensee shall ensure that no Licensee Content  includes or links to sensitive data (as such term is defined in the applicable jurisdiction). 

e) Licensee represents and warrants that: (a) no processing of Licensee Content under this Agreement  (whether by ControlUp, its affiliates, or the hosting providers) will violate any law or regulation,  proprietary right, or privacy right; and (b) it has obtained and will maintain all required consents and  licenses, and will maintain all ongoing legal bases under relevant privacy laws or regulations (if  applicable), necessary to provide, make available, and otherwise expose Licensee Content to  ControlUp, its affiliates, and the hosting providers. 

f) The Software is not intended to, and will not, operate as a data storage or archiving product or  service, and Licensee agrees not to rely on the Software for the storage of any Licensee Content  whatsoever. Licensee is solely responsible and liable for the maintenance and backup of all Licensee  Content. 

5) Intellectual Property Rights  

a) The Software, in whole or in part, as well as any extracts or output that the Licensee produce when  using the Software and any other ControlUp Protected Material are and shall continue to be owned exclusively by ControlUp, including, but not limited to, its structure, organization and code which constitute valuable trade secrets of ControlUp. The ControlUp Protected Material is also protected by local Copyright Law and International Treaties’ provisions. The Licensee shall not receive in any manner whatsoever, under any circumstances whatsoever, any source code of or relating to any  software included in the ControlUp Protected Material. It shall also be emphasized that this Agreement does not grant the Licensee a license in any source code. 

b) The Licensee hereby declares and agrees that this Agreement does not entitle the Licensee to any intellectual property rights including, but not limited to, patents, copyrights, trade- secrets, trademarks or any other rights relating to the Software, its source code and the ControlUp Protected Material. 

c) The Licensee hereby declares and agrees to refrain from copying, modifying, adapting, translating or making derivative works based upon the ControlUp Protected Material. The Licensee shall also refrain from reverse engineering, decompiling, disassembling or attempting in any other manner whatsoever to discover the source code of the Software. 

d) The ControlUp marks, including but not limited to, CONTROLUP, CONTROLUP APPLICATION LOAD TIME PROFILER, CONTROLUP NETSCALER MONITOR, CONTROLUP AUTOMATION, CONTROLUP SOLVE SCOUTBESS BY CONTROLUP, AND CONTROLUP INSIGHTS are trademarks owned by ControlUp. This Agreement does not grant the Licensee any rights (including, but not limited to, intellectual property rights), license, title or interest to these trademarks, and the Licensee agrees to refrain from claiming any such rights, license, title or interest with respect to these trademarks. The use of any of these trademarks without the prior written consent of ControlUp is strictly prohibited. 

e) Any other trademarks, service marks, product names and company names or logos, directly or by reference, are the sole properties of their respective owners. Use of any of these marks, names and logos without the prior written consent of their owners is strictly prohibited. 

6) Third Party Open-Source Software 

a) Licensee may receive open source software when it uses the Software. The open source software Licensee receives, as well as open source software that Licensee may interact with when using the Software and that ControlUp is required to disclose to Licensee, is made available under the applicable open source licenses, found here. Licensee can obtain a copy of these licenses and any source code (and modifications) that ControlUp is required to make available under these licenses (“Source Files”) here or by sending a written request, with petitioner name and address, to: support@controlup.com. All requests must clearly specify: “Open Source Files Request”. 

b) Open source software embedded in the Software will not be deemed to be “Third-Party Content.” All provisions in this Agreement applicable to the use of the Software (e.g., warranty, liability, indemnification, and other obligations) will control as between Licensee and ControlUp over any conflicting terms set forth in any open source software license otherwise applicable to that open source software. 

7) The Licensee’s Responsibilities, Restrictions and Obligations 

a) The Licensee shall be solely responsible: 

i) For selecting qualified users to use the Software, including, without limitation, the Main Console and the Reporting Portal, who are familiar with the information, calculations, and reports that serve as input and output of the End Points, the Main Console and the Reporting Portal. 

ii) For any activities occurring during the use of the Software provided to the Licensee, whether such activity is made through one of the Licensee’s ControlUp User Accounts, even, without limitation, if such ControlUp User Account is not part of the Licensee’s organization, and just provide services to the Licensee. 

iii) For using the Software and ControlUp Content for lawful purposes only. Accordingly, the Licensee  shall not do anything that encourages conduct which would constitute a criminal offense or which  encourages or might encourage “hacking” or “cracking,” or which might give rise to a civil liability or otherwise violate any applicable local or international laws or regulations.

iv) For obtaining or providing, at the sole expense of the Licensee, all telephone, internet service  and/or leased or dedicated access lines, telephone and computer equipment, including  connection equipment and modems and any other hardware or software necessary to enable  the operation of the Software. The Licensee declares and warrants that ControlUp shall not be  held liable for any network-related problems that can be attributed to the operation of the  Software. The Licensee also acknowledges that internet and network configuration changes  might affect the Software’s performance and accessibility. 

b) Note – the use of the Software might require one or more compatible devices, Internet access, and  certain software, and obtaining updates or upgrades from time to time. Since the use of the Software involves hardware, software, and Internet access, the Licensee’s ability to use the Software might be affected by the performance of these components. The Licensee hereby declares and agrees that the compliance to such system requirements, which may be changed from time to time, shall be its  sole responsibility. 

c) The Licensee’s obligations under this Agreement include compliance with all applicable national and  foreign laws, treaties and regulations relating to or arising from the Licensee’s use, and its users’ use of the Software, including, without limitation, those related to the protection of intellectual property, data privacy, and the transmission of technical or personal data. Furthermore, the Licensee shall notify ControlUp immediately of any unauthorized known or suspected use of any ControlUp User Account and of any other known or suspected breach of security, and shall use reasonable efforts to immediately stop any known or suspected copying or distribution of content. 

d) The following restrictions shall also apply to the Licensee’s use of the Software:

 i)  The Licensee shall refrain from accessing the Software and ControlUp Content in order to (a)  create a competitive product or service; (b) create a product using similar ideas, features,  functions or graphics of the Software; or (c) copy any ideas, features, functions or graphics of the  Software. 

ii) The Licensee shall not be entitled to: (a) license, sublicense, sell, resell, transfer, assign, distribute or commercially exploit or make the Software or ControlUp Content available to any third party, in any manner whatsoever; or (b) create Internet “links” to the Software or “frame” or “mirror” any content thereof on any other server, wireless or Internet-based device. 

iii) During the Licensee’s use of the Software, the Licensee shall not (a) send spam or otherwise  distribute duplicative or unsolicited messages that violates any applicable laws; (b) send or store infringing, obscene (including pornography, violence, terror, etc.), threatening, libelous, or otherwise unlawful or tortuous material, including, but not limited to, material harmful to  children or violating privacy rights of a third party; (c) send or store material containing viruses,  worms, trojan horses or other harmful computer code, files, scripts, or programs; (d) attempt to  gain unauthorized access to the Software or its related systems or networks; (e) violate or cause ControlUp to violate any applicable law in any manner whatsoever; or (f) use the Software for any other purpose than for your reasonable internal business purposes. Furthermore, the Licensee acknowledges that ControlUp assumes no responsibility for monitoring the Licensee’s  use of the Software for inappropriate content or conduct. 

iv) The Licensee shall not transfer any of its rights and obligations under this Agreement.

 v) When the License Program includes a Bundle, the number of purchased Named User Licenses shall apply to all Licensed Products under the Bundle, provided that with respect to ControlUp Edge DX, monitoring shall be limited to three (3) End Points per Named User.

vi) When the License Program includes ControlUp Scoutbees, please note that such License Program is limited to up to 20,000 tests per each 24-hour maintenance window.

8) Warranties and Disclaimers  

a) ControlUp hereby represents and warrants that: 

i) it shall take reasonable measures prevent unauthorized access to the Software, and maintain  data accuracy and appropriate use of the Software; 

ii) notwithstanding that the Software comprises third party software, open source software,  freeware or shareware, ControlUp agrees that the terms and conditions of this Agreement shall  apply exhaustively between the parties to this Agreement to the delivery of third party software,  open source software, freeware or shareware; 

iii) the Software and any new versions, releases and updates has been duly tested for bugs and  viruses;

iv) ControlUp will discharge its obligations under the Agreement with reasonable skill, care and  diligence including Industry practice and in accordance with its own established internal  procedures as applicable; and 

v) ControlUp has the right to grant Licensee the license to use the Software, and, to ControlUp’s  knowledge, the Software does not infringe upon the intellectual property right of any third party. 

vi) Licensor’s sole liability for any breach of this warranty shall be, in Licensor’s sole discretion: (a) to replace or repair the defective Software; or (b) to refund the price paid for the Software based on a pro rata basis for the period the Software has not been used by Licensee. The foregoing  warranties are contingent upon Licensee’s proper use of the Software, and shall not apply to damage caused by abuse, misuse, alteration, neglect, or unauthorized repair or installation, or by the use or attempted use of the Software other than that supplied and supported by Licensor.  Only if Licensee informs Licensor of the defect in writing within ten (10) days of delivery, and  provides evidence of the date the License was delivered, will Licensor be obligated to honor this  warranty. Licensor will use reasonable commercial efforts to repair, replace or refund pursuant to the foregoing warranty within thirty (30) days of being so notified. The foregoing constitutes Licensee’s sole and exclusive remedy for breach by Licensor of any warranties made under this  Agreement.  

b) THE WARRANTIES SET FORTH ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES,  EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, MAINTENANCE SERVICES OR ANY OTHER ITEMS PROVIDED HEREUNDER. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR ANY SUPPORT SERVICES, WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT  INTERRUPTION. 

9) Limitation of Liability  

a) IN NO EVENT SHALL LICENSOR OR ANYONE ON ITS BEHALF BE HELD LIABLE FOR ANY INDIRECT,  INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, CONFIDENTIAL OR OTHER INFORMATION OR OTHER INTANGIBLE LOSSES, FOR CORRUPTION OF DATA, FOR ANY COMPUTER  FAILURE, FOR BUSINESS INTERRUPTION. 

b) IN NO EVENT SHALL THE TOTAL LIABILITY OF LICENSOR AND ANYONE ON ITS BEHALF FOR ALL  DAMAGES, LOSSES, CLAIMS AND COSTS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED  THE AGGREGATE AMOUNT PAID BY THE LICENSEE TO LICENSOR DURING THE PERIOD OF 12  MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.  

c) THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (i) TO THE MAXIMUM EXTENT  PERMITTED BY APPLICABLE LAW; (ii) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN  AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (iii) EVEN IF ANY REMEDY IN THIS  AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (iv) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY),STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR  OTHERWISE.  

10) Confidentiality and Privacy  

a) If Licensee is subject to the General Data Protection Regulation (“GDPR”), the Licensee shall sign  ControlUp’s Data Processing Agreement (“DPA”), available at: https://controlup.com/privacy/dpa,  and return it signed to privacy@controlup.com. Licensee hereby agrees that any processing of  information performed by ControlUp on Licensee’s behalf shall be subject to the terms and  conditions of the DPA. Licensee agrees to defend, indemnify and hold harmless ControlUp and its  affiliates, and their respective officers, directors, employees and agents, from and against any and  all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to  attorney’s fees) arising from: (i) Licensee’s failure to comply with the obligations applicable to  Licensee under the GDPR and/or data protection laws or regulations or the DPA; and/or (ii) the 

processing of personal data without a DPA, in the event Licensee fails to return to ControlUp the  DPA duly signed by Licensee. 

b) If Licensee is not subject to the GDPR, then the collection, use and retention of Licensee’s  information pursuant to this Agreement is according to the privacy policies which are set forth on  ControlUp website: https://www.controlup.com/products/controlup/controlup-privacy-policy/ and constitutes an integral part of this Agreement and you declare that you read it before the use of the  Software. 

c) The licensee is aware that ControlUp’s Software includes features which may, in different  jurisdictions, trigger certain legal obligations in regards to privacy and data protection. The Licensee undertakes to use ControlUp’s Software in complete accordance with all the relevant privacy laws and regulations in the relevant jurisdictions where it acts and resides. 

d) The Software contains confidential information and trade secrets that ControlUp developed through the expenditure of a great deal of time and money (“Confidential Information”). The Licensee shall use the Confidential Information solely in accordance with this Agreement. This Agreement does not transfer to the Licensee in any manner whatsoever any rights including, without limitation, intellectual property rights in the Confidential Information and the Confidential Information shall remain the exclusive property of ControlUp. The Licensee shall maintain in strict confidence and refrain from using any information contained in the Software or ControlUp Content in any manner whatsoever, whether by himself or through others, and to refrain from transferring and/or publishing and/or showing and/or disclosing the Information to any third party, whether directly or indirectly. In addition, the Licensee shall not allow any person, corporate or other third party to copy and/or duplicate and/or use the Information, in any manner whatsoever. Any information that is in the public domain would not constitute as confidential information. 

e) The Licensee’s undertakings, as stated in this provision, are irrevocable and shall remain in full force and effect at all times, without limitation. The Licensee shall compensate ControlUp for all damages arising out of or resulting in any way from Licensee’s breach of any warranty as provided herein or otherwise provided by law. 

f) The Licensee hereby agrees that ControlUp may list the Licensee as a customer and reproduce the  Licensee’s logo and registered trademark online or in printed materials solely to indicate that the  Licensee is or was a licensee or user of the Software, unless and until the Licensee notifies ControlUp in writing of its refusal of such publicity. 

11) Indemnification  

a) ControlUp Indemnification: Licensor shall defend or settle at its expense any action, claim or  proceeding, brought against Licensee to the extent based upon a claim that the Software licensed by Licensee infringes any third-party intellectual property right. Licensor’s obligation to indemnify Licensee  shall be limited to the following: Licensor agrees to pay Licensee reasonable attorneys’ fees and expenses, incurred in investigation or defense of such claims, and all damages and liabilities finally awarded against Licensee or paid in settlements and arising out of such third-party claims. Licensee shall give Licensor prompt notice of any such claim made against it, shall provide (at the Licensor’s  request and expense) such information and assistance in the defense of such claims as reasonably requested by Licensor, and shall grant Licensor sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof. If the Software  or part thereof becomes, or in Licensor’s opinion may become, subject to any claim of infringement of any duly issued patent or copyright or asserted trade secret right and its use is thereby enjoined, Licensor’s sole liability shall be, at Licensor’s option, to either: (i) procure for Licensee the right to continue using the Software; (ii) replace or modify the Software, so that it is non-infringing; or (iii) if  neither of the foregoing alternatives is reasonably practical, Licensor shall refund a portion of the  License Fees paid to Licensor for such Software based on the Software’s then-current depreciated value  and terminate this Agreement without further liability. Notwithstanding the foregoing, Licensor shall  have no liability for Licensee’s willful acts or for any settlement or compromise incurred or made by Licensee without Licensor’s prior written consent. Licensor shall have no obligation to defend and shall have no liability to the extent an infringement allegation is based upon: (x) use by Licensee of the Software in conjunction or in combination with any device other than as authorized by Licensor, or any use of the Software by Licensee that is in violation of this Agreement, (y) use of the Software by Licensee in a manner or for an application other than for which it was designed, (z) Licensee’s modifications to  the Software, (xx) Licensor’s compliance with Licensee’s particular design, instructions or specifications, or (yy) Licensee’s failure to use any modifications, including corrections and enhancements, delivered to Licensee by Licensor, if such use would have prevented the infringement. Subsections (x) through (yy) above will be both individually and collectively known as “Other Claims.”

b) Licensee Indemnification: Licensee will defend any claim, suit, or proceeding brought against Licensor  and will pay any damages or court costs (excluding consequential and exemplary damages) finally  awarded against Licensor, or agreed to by Licensee in settlement or compromise, to the extent such  claim, suit, or proceeding is based on: (i) an infringement allegation arising from Other Claims; (ii)  Licensee’s use of the Software in violation of the terms and conditions herein; and (iii) Licensee’s  violation of any international, federal, provincial, state, or local law, rule or regulation including any  such law, rule or regulations which are privacy related. Licensor shall give Licensee prompt notice of  any such claim made against it, shall provide (at the Licensee’s request and expense) such information and assistance in the defense of such claims as reasonably requested by Licensee, and shall grant Licensee sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof. 

c) Each party may be represented in any such indemnification proceeding by counsel of its own choosing  at its own expense. The indemnifying party shall not agree to any settlement or compromise that admits  fault or imposes liability on the part of the indemnified party without its prior written consent. 

12) Fees and Payments  

a) The Licensee shall provide ControlUp with complete and accurate billing and contact information. This  information includes the Licensee’s legal company/organization name (if applicable), street address,  telephone number, fax number (if applicable), email address, and name of an authorized billing  contact. In the event of a change of any of this information, the Licensee agrees to update the  information within 30 days of any change. If the contact information the Licensee provides is false or  fraudulent, ControlUp reserves, without derogating from any other rights and remedies entitled to it  under applicable law, or this Agreement and any other terms incorporated by reference to this  Agreement, to terminate this Agreement. 

b) The Licensee shall be solely responsible for the payment of any taxes applicable by any law, resulting  from the Licensee’s acceptance of this Agreement and/or the Licensee’s use of the Software, exclusive of taxes based on ControlUp income. The Licensee agrees to hold ControlUp harmless from any claims  and liabilities arising from the Licensee’s failure to report or pay such taxes. 

c) In case of termination of this Agreement, for any cause whatsoever, the Licensee agrees that ControlUp shall be entitled to charge the Licensee’s credit card or any other means of payment provided by the Licensee to ControlUp, with regard to any unpaid fees, or other outstanding payment obligations of the  Licensee toward ControlUp, if any. 

13) Term, Termination and Effect of Termination  

a) This Agreement shall be in effect for the term specified in the Order (the “Initial Term”), following which  the Agreement and License rights and obligation set forth herein shall renew for consecutive 1-year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”), unless Licensee provides ControlUp with written notice of its intention not to renew no later than 30 days prior to the  expiration of the Initial Term or each Renewal Term, as applicable.  

b) Either party shall be entitled to terminate this Agreement by a written notice with immediate effect in the following  events (“Termination for Cause”):

i) A breach of any of the Licensee’s obligations under this Agreement and the breach has not been  cured within 7 days from the date the Licensee received a written notice specifying such breach. ii) Current or future governmental regulations prevent the continued delivery of ControlUp’s  Services to the Licensee under this Agreement. 

d)   In case of Termination for Cause by  Licensee, the Licensee shall be entitled to receive, as a sole remedy, a refund equal to the proportional portion of the fees already paid to ControlUp, which may also be set-off against yet unbilled and/or unpaid fees for the remainder of the Term. For avoidance of doubt, in case of Termination for Cause by ControlUp, the Licensee shall not be entitled to any refund whatsoever. 

e) Upon termination of this Agreement, for any cause whatsoever, the following terms shall apply: i) Any rights granted to the Licensee under this Agreement shall terminate automatically and the  Licensee shall not be entitled to receive any payment or refund of any fee paid by the Licensee  (unless specifically expressed otherwise in this Agreement). 

ii) The Licensee shall remove and destroy any copies of the Software installed by it, and/or by  anyone on its behalf. 

14) Support & Maintenance  

a) Unless specifically indicated in a License Program to which the Licensee subscribed, or in an Order  signed by the parties, ControlUp is under no obligation to offer support and/or maintenance services  for free, and the Licensee may not assume or hold ControlUp liable for any such undertaking.  Notwithstanding the above, should ControlUp choose to do so at its sole discretion, the Company shall, upon ControlUp’s notification or request, upgrade from time to time the Software to more advanced versions released, and the Software can be upgraded, ControlUp will not be under any obligation to  retain any previous releases of the Software. 

b) ControlUp may decide, however, from time to time, according to its sole discretion, to provide Support  Services to the Licensee, in whole, in part or in any other manner whatsoever. ControlUp shall also be  entitled, according to its own discretion, to cease providing such Support Services without notice,  unless otherwise agreed upon between the parties in writing, and the Licensee shall not be eligible for  any compensation for such cessation. 

15) Miscellaneous  

a) No Waiver. No delay or omission on the part of ControlUp in exercising any right or remedy shall  operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion  shall not be construed as a bar to or a waiver of any right on any future occasion. 

b) Governing Law. This Agreement shall be governed, construed, interpreted and enforced according to  the laws applicable to the relevant ControlUp Entity in the order form, as follows:

 i) Order signed with ControlUp, Inc.: The Agreement shall be governed by the laws of the State of  New York without giving effect to its provisions regarding conflict of laws and only the courts in  New York County, New York shall have jurisdiction in any conflict or dispute arising out of this  Agreement. 

ii) Order signed with ControlUp Technologies Ltd.: The Agreement shall be governed by the laws of  Israel without giving effect to its provisions regarding conflict of laws and only the courts in Tel Aviv, Israel shall have jurisdiction in any conflict or dispute arising out of this Agreement. 

iii) Order signed with ControlUp GMBH: The Agreement shall be governed by the laws of Germany  without giving effect to its provisions regarding conflict of laws and only the courts in Frankfurt,  Germany shall have jurisdiction in any conflict or dispute arising out of this Agreement. 

iv) Order signed with ControlUp UK Limited: The Agreement shall be governed by the laws of England and Wales without giving effect to its provisions regarding conflict of laws and only the courts in London, UK shall have jurisdiction in any conflict or dispute arising out of this Agreement. 

v) Order signed with ControlUp PTY LTD The Agreement shall be governed by the laws of state of  NSW Australia without giving effect to its provisions regarding conflict of laws and only the courts in Sydney, NSW Australia shall have jurisdiction in any conflict or dispute arising out of this  Agreement. 

c) Severability. In the event that any provision of this Agreement or any provisions incorporated by  reference to this Agreement shall be held by a competent court to be void, invalid, unenforceable or  illegal the remaining provisions shall continue in full force and effect. 

d) Notices. Any Notice to be given by the Licensee pursuant to this Agreement shall be sent to ControlUp  via Registered Mail to the address stipulated in section 1.1 above, or via email to the following email address Support@controlup.com, and shall be deemed to have been received by ControlUp – if sent via  Registered Mail – 7 business days after the delivery of such notice, and if sent via email – 2 business days after the Licensee confirms that it has been received by ControlUp. Any Notice to be given to the Licensee shall be made via Registered Mail or email address, according to the addresses the Licensee  fills in the registration and shall be deemed to have been received by the Licensee- if sent via Registered  Mail – 7 business days after the delivery of such notice, and if sent via email – 2 business days after  such notice has been sent. 

e) Entire Agreement. This Agreement, including any provisions incorporated by reference, constitutes the  entire agreement with respect to the Software and to ControlUp’s provision of Services to the Licensee, and shall supersede all prior oral or written communications, understandings and representations with respect to the Software and to ControlUp’s provision of services to the Licensee. In the event that the terms of any of ControlUp’s policies or terms and conditions conflict with the terms of this Agreement, including any provisions incorporated by reference to this Agreement, the terms of this Agreement including any provisions incorporated by reference to this Agreement shall prevail. 

f) Modifications. ControlUp may change, in its sole discretion, the terms of this Agreement, from time to  time, by posting a modified copy of the Agreement on ControlUp’s website, or by otherwise notifying  the Licensee. The changes will be effective and binding as from the date that the notice will be posted; unless a different effective date is specified. Therefore, ControlUp recommends to enter ControlUp’s website from time to time to review information concerning such modifications. THE LICENSEE’S CONTINUED USE OF THE SOFTWARE FOLLOWING DELIVERY AND/OR POSTING OF A NOTICE OF  MODIFICATION SHALL BE DEEMED AS AN ACCEPTANCE OF SUCH MODIFICATION. IF ANY  MODIFICATION SHALL BE UNACCEPTABLE TO THE LICENSEE, THE LICENSEE MUST TERMINATE THIS  AGREEMENT IMMEDIATELY, AND NOTIFY CONTROLUP IMMEDIATELY SO THAT A TERMINATION OF THE  LICENSEE’S LICENSE SHALL BE PROCESSED, AND SUCH TERMINATION IS THE LICENSEE’S ONLY  RECOURSE. 

g) Assignment. The Licensee’s rights and obligations under this Agreement may not be assigned or  transferred in any other way, by operation of law or otherwise without the prior written consent of  ControlUp. ControlUp shall have the right to assign ControlUp’s rights and obligations under this  Agreement without the consent of the Licensee to its affiliates or upon any merger or acquisition  transaction or the sale of all or substantially all of the assets relating to the Software. 

Last updated: August 2024