End User License Agreement
IMPORTANT – READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE (THE “SOFTWARE”).
This End-User License Agreement (“Agreement”) is a binding legal agreement between you (“Licensee”) and ControlUp Inc. (or any other ControlUp entity specified in an Order, if applicable) (the “Licensor”, “Company” or “ControlUp”) 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 govern, 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 INSTALLING, DOWNLOADING, COPYING OR USING THE SOFTWARE, THE LICENSEE DECLARES THAT HE CAREFULLY READ AND UNDERSTOOD AND ACCEPTED THE TERMS OF THIS AGREEMENT AND AGREES TO BE LEGALLY BOUND BY ITS TERMS, INCLUDING THOSE INCORPORATED BY REFERENCE HERETO. IF THE LICENSEE DOES NOT AGREE TO THESE TERMS, HE SHALL REFRAIN FROM INSTALLING, COPYING, DOWNLOADNG OR USING THE SOFTWARE.
IF YOU ARE INSTALLING THIS SOFTWARE ON BEHALF OF A USER, YOU WARRANT AND REPRESENT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF THE USER AND TO ACCEPT AND BIND THE USER TO THE TERMS OF THIS AGREEMENT AND ANY OTHER TERMS INCORPORATED BY REFERENCE HERETO.
- “We” , “Us” ,”ControlUp”, “Our” or the “Company” refer to ControlUp Inc. A Delaware Corporation, having its main place of business at 4880 Stevens Creek Blvd. Suite 204 San Jose CA 95129 United States., and any other ControlUp entity specified in an Order, if applicable.
- ControlUp Entities – refer to 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
ControlUp GMBH, a German Corporation having its main place of business at Mazars Rechtsanwaltsgesellschaft mbH, Theodor-Stern-Kai 1, 60596 Frankfurt am Main Germany
ControlUp UK Limited, a British Corporation having its main place of business at 37 Broadhurst Gardens London NW6 3QT United Kingdom
- “Licensee” refers to the business entity and/or individual person consenting to, and entering into, this Agreement.
- “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, in addition to 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 (“Updates & Upgrades”).
- “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.
- “ControlUp Content” refers to any Content (excluding Licensee Content) appearing on or in, or otherwise provided or made available via, the Software.
- “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.
- “Installation Date” refers to the date on which the Licensee installs the Software.
- “License Program” refers to a certain combination, marked and chosen by the Licensee when purchasing a license, as further described in section 12.2.
- “Support Services” refers to those support services corresponding to the License Program chosen by the Licensee.
- “Annual License Fee” refers to the respective amounts that should be paid to ControlUp for the use of the Software for a period of one or more years in accordance with the relevant Annual License Plan.
- “Monthly License Fee” refers to the respective amounts that should be paid to ControlUp per each month in which the Licensee uses the Software in accordance with the relevant Monthly License Plan.
- “Main Console” refers to the IT Management system, known as “ControlUp Real-time” or “ControlUp Solve” in the edition stipulated in the License Program the Licensee subscribed for, that is installed on the Licensee’s Server.
- “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.
- “Agent” refers to any piece of software code ControlUp provides the Licensee (deployed from the installation package installed with the Main Console or from ControlUp website), that is installed on all, selected, or none, of the Licensee’s End Points.
- “Reporting Portal” refers to a web-based portal and its backend providing access to services such as “ControlUp Insights” “ControlUp Solve”, “Scoutbees by ControlUp”, offering an operational intelligence solution for monitoring and analysis of enterprise network environments
- “ControlUp Backend Servers” refers to software, database scripts and configuration elements providing backend services to the Main Console, the Monitor Service and Reporting Portal.
- “ControlUp On-Premises Server” refers to software, database scripts and configuration elements providing backend services to the Main Console and the Monitor Service which reside within the Licensee’s network.
- “ControlUp Insights On-Premises Server” refers to software, database scripts and presentation services for ControlUp Insights which reside within the Licensee’s network.
- “Our Servers” refers to severs belonging to ControlUp and/or third party providing Hosting service for ControlUp Backend Servers used by ControlUp.
- “End Point” refers to each hardware or virtualized based station monitored by the Main Console and/or the Monitor Service under the terms of this Agreement, including, but not limited to, personal computers, laptops, terminal services, VDI, servers, screens etc.
- “Host” refers to virtualized infrastructure elements which can run multiple End Points and Servers and are monitored by the Main Console and/or the Monitor Service under the terms of this Agreement, including, but not limited to vSphere, XenServer and Hyper-V based hosts.
- “Cloud Connection” refers to Cloud providers’ virtualized infrastructure elements which can run multiple End Points and Servers and are monitored by the Main Console and/or the Monitor Service under the terms of this Agreement, including, but not limited to AWS, Azure, and GCP.
- “Server” refers to a component of hardware enabling the installation of the Main Console and/or The Monitor Service and/or the ControlUp On-Premises Server and/or the ControlUp Insights On-Premises Server 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).
- “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.
- “User/s” refers to the Licensee and any individual on its behalf that is assigned with a ControlUp User Account.
- “Concurrent ControlUp Licenses” refers to the number of ControlUp Licenses being used to monitor the objects by the Main Console and/or the Monitor. The total amount of licenses is determined by the types and amounts of the objects that are being monitored.
- “Hybrid Cloud Mode” refers to an operation of the Main Console and the Monitor Service in which certain login, configuration, performance metrics, IT events and licensing information are exchanged between ControlUp Backend Servers reside on Our Servers and the Main Console and The Monitor Service securely communicates and exchanges information with ControlUp Backend Servers.
- “On Prem Mode” refers to an operation of the Main Console and the Monitor Service in which certain login configuration, performance metrics, IT events and licensing information are exchanged between ControlUp On-Premises Server reside within the Licensee’s network and the Main Console and The Monitor Service securely communicates and exchanges information with ControlUp On-Premises Server. ControlUp configuration data and statistics are stored solely within the Licensee’s network and are never sent to Our Servers.
- “ControlUp Automation” refers to the capability of the Software to automaticly execute canned responseed based on states, events or metrics changes in one or more of the End Points.
- “Mobile App” refers to a mobile application and its backend known as “ControlUP Mobile” offering an alerting solution for incident received at the “Monitor Service”.
- “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 License’s use, of the Software and/or ControlUp Content (such as metadata, aggregated data, analytics, security findings or discoveries, etc.).
- 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.
- Reservation of Rights and Ownership
ControlUp Protected Material
- 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 nothing in this Agreement shall be deemed to prohibit or otherwise limit such activities.
- 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.
- As between the Parties, Licensee is, and shall be, the sole and exclusive owner of all Licensee Content.
- 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).
- 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.
- 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.
- Intellectual Property Rights
- 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.
- 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.
- The Licensee hereby declares and agrees to refrain from copying, modifying, adapting, translating or making derivative works based upon the CotnrolUp 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.
- 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.
- 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.
- Third Party Open Source Software.
- 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: firstname.lastname@example.org. All requests must clearly specify: “Open Source Files Request”.
- 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.
- The Licensee’s Responsibilities, Restrictions and Obligations
- The Licensee shall be solely responsible:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- The following restrictions shall also apply to the Licensee’s use of the Software:
- 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.
- The Licensee shall not be entitled to: (i) 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 (ii) create Internet “links” to the Software or “frame” or “mirror” any content thereof on any other server, wireless or Internet-based device.
- During the Licensee’s use of the Software, the Licensee shall not (i) send spam or otherwise distribute duplicative or unsolicited messages that violates any applicable laws; (ii) 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; (iii) send or store material containing viruses, worms, trojan horses or other harmful computer code, files, scripts, or programs; (iv) attempt to gain unauthorized access to the Software or its related systems or networks; (vi) violate or cause ControlUp to violate any applicable law in any manner whatsoever; or (vii) use the Software for any other purpose than for your reasonable internal business purposes. Furthermore, the Licensee acknowledges that ControlUp assume no responsibility for monitoring the Licensee’s use of the Software for inappropriate content or conduct.
- The Licensee shall not transfer any of its rights and obligations under this Agreement.
- Warranties and Disclaimers
- This section 8.1 shall apply during the Trial Term, or while the Licensee is using the Free License Program (as defined in Section 12.2 below):
- THE SOFTWARE MAY CONTAIN ERRORS, BUGS AND OTHER PROBLEMS WHICH COULD CAUSE DAMAGES SUCH AS, BUT NOT LIMITED TO, SYSTEM CRASH OR FAILURE. THE COMPANY RESERVES THE RIGHT TO ALTER THE SOFTWARE AT ANY TIME ACCORDING TO ITS SOLE DISCRETION, AND ANY RELIANCE ON THE SOFTWARE OR ITS QUALITY OR PERFORMANCE SHALL BE AT THE LICENSEE’S SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND ANY OTHER TERMS REFERENCED BY THIS AGREEMENT, THE SOFTWARE AND SUPPORT SERVICES (IF ANY) ARE PROVIDED TO YOU ON AN “AS-IS” BASIS WITH ALL FAULTS. CONTROLUP HEREBY DESCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WRRANTIES AND CONDITIONS OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR RILIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE ALL WITH REGARD TO THE SOFTWARE AND THE PROVISION OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF CORRESPONDENCE TO DESCRIPTION NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY CONTROLUP, OR ANYONE ON ITS BEHALF, INCLUDING, BUT NOT LIMITED TO, ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, CONTRACTORS OR THE LIKE SHALL CREATE OR CONSTITUTE ANY FORM OF WARRANTY. ACCORDINGLY, THE LICENSEE AGREES THAT THE USE OF THE SOFTWARE IS AT ITS SOLE RISK, AND THAT NEITHER CONTROLUP NOR ANYONE ON ITS BEHALF, DO NOT AND CAN NOT WARRANT OR BE HELD LIABLE FOR THE PERFORMANCE OR RESULTS THE LICENSEE MAY OBTAIN BY USING THE SOFTWARE NOR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR MEET ANY REQUIREMENTS.
- This section 8.2 shall apply while the Licensee is using Commercial License Program (as defined in Section 12.2 below):
- ControlUp hereby represents and warrants that:
- it shall take reasonable measures prevent unauthorized access to the Software, and maintain data accuracy and appropriate use of the Software;
- 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;
- the Software and any new versions, releases and updates has been duly tested for bugs and viruses;
- 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
- 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 any third party.
- Licensor’s sole liability for any breach of this warranty shall be, in Licensor’s sole discretion: (i) to replace or repair the defective Software; or (ii) 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, and in case of a perpetual License, based on the Software’s then-current depreciated value straight line thirty six (36) month depreciation basis. 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
- 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.
- Limitation of Liability.
- This Section 9.1 shall apply during the Trial Term, or while the Licensee is using the Free License Program:
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR OR ANYONE ON ITS BEHALF BE HELD LIABLE FOR ANY DIRECT, 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, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) (EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SOFTWARE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE TRANSMISSIONS OR DATA GENERATED IN CONNECTION WITH THE SOFTWARE; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY GENERATED IN CONECTION WITH THE SOFTWARE; OR (V) ANY OTHER MATTER RELATING TO THE SOFTWARE.
- NEITHER LICENSOR NOR ANYONE ON ITS BEHALF INVOLVED IN CREATING, PRODUCING, MARKETING OR DISTRIBUTING THE SOFTWARE, SHALL BE HELD LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM USE OF OR INABILITY TO USE THE SOFTWARE DUE TO ANY CAUSE WHATSOEVER, INCLUDING ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO RECORDS OR THE SOFTWARE.
- This Section 9.2 shall apply while the Licensee is using the Commercial License Program:
- 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.
- PROVIDED THAT THE LICENSEE SUBSCRIBES TO A COMMERCIAL LICENSE PLAN, 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 IMMEDIATELY PRECEDING PERIOD OF 12 MONTHS.
- THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) 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.
- Confidentiality and Privacy
- If Licensee is subject to the General Data Protection Regulation (“GDPR”), then Licensee shall sign ControlUp’s Data Processing Agreement (“DPA”), available at: [https://controlup.com/privacy/dpa], and return it signed to [email@example.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.
- 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.
- 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.
- 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.
- 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.
This section 11 shall apply only if the Licensee has purchased a Commercial License Program.
- 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: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software, so that it is non-infringing; or (c) 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: (i) 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, (ii) use of the Software by Licensee in a manner or for an application other than for which it was designed, (iii) Licensee’s modifications to the Software, (iv) Licensor’s compliance with Licensee’s particular design, instructions or specifications, or (v) 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 (i) through (v) above will be both individually and collectively known as “Other Claims”.
- 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.
- 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.
- Fees and Payments
- Following the Installation Date, the Licensee shall be entitled to use the Software, free of charge, for a period of 21 days (“Trial Term”). During the Trial Term, the Licensee shall be able to use all features and functionalities of the Software and shall receive reasonable Support Services free of charge as further detailed in Section 14 below.
- Following the completion of the Trial Term, ControlUp grants licenses regarding the Software under several License Programs and Licensee shall choose from any of such License Programs, as follow:
- “Free License Program”, which is free of charge and includes a limited amount of Concurrent ControlUp Licenses.
- “Commercial License Programs”, which are subject to the payment of fees in accordance with the configuration the Licensee subscribes for, as indicated in the License Program and maintained on Our Servers when operating in a Hybrid Cloud Mode and/or On-Prem Mode and/or Standalone Mode.
- In case the Licensee’s use of the Software is through a Commercial License Program, it shall be subject to one of the following Commercial License Programs, at Licensee’s choice:
- “Perpetual License Plan” – Licensee may purchase a license under the license terms set forth herein, for an unlimited period of time, subject to the full and accurate payment of the Perpetual License Fee. The Perpetual License Fee shall be paid to ControlUp after the completion of the Trial Term. In addition, Licensee shall pay an annual fee for Maintenance Support and upgrade Services, which shall be payable in advance for every year in each anniversary of the Perpetual License Plan purchase, (the “Maintance & Support Fee”). The Perpetual License Fee and the Maintenance & Support Fee shall be non-refundable even if the Licensee stops using the Software for any reason whatsoever.
- “Annual License Plan” – Licensee may purchase an annually-based license under the license terms set forth herein, subject to the full and accurate payment of the Annual License Fee. The Annual License Fee shall be paid to ControlUp in advance for every year or years during the applicable Term (as defined in section 13.1), and shall be non-refundable even if the Licensee stops using the Software before the end of the Term for any reason whatsoever. Under the Annual License Plan, ControlUp shall provide Licensee with Support Services free of charge.
- “Monthly License Plan” – Licensee may purchase a monthly-based license under the license terms set forth herein, subject to the full and accurate payment of the Monthly License Fee. The Monthly License Fee shall be paid to ControlUp in advance for every month during the applicable Term (as defined in section 13.1), and shall be non-refundable even if the Licensee stops using the Software before the end of the Term for any reason whatsoever. Under the Monthly License Plan, ControlUp shall provide Licensee with Support Services free of charge.
- For Clarity, if the Licensee does not make any payment to purchase a Commerciale License Program following the conclusion of the Trial Term, then Licensee shall be deemed to have chosen the Free License Program, until such payment is made.
- If the Licensee purchases a Commercial License Program, 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), e-mail 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.
- 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.
- 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.
- Term, Termination and Effect of Termination
- This Agreement shall become effective as from the date the Licensee accepts the terms of this Agreement and shall maintain, unless otherwise agreed in this Agreement, in force as follows:
The Annual Initial Term and the Monthly Initial Term shall be collectively referred to as the “Initial Term”, and the Annual Extended Term and the Monthly Extended Term shall be collectively referred to as the “Extended Term”, in each case according to the applicable License Program chosen by the Licensee. In any case, the entire period during which the Agreement will be in effect shall be referred to as the “Term”.
- If the Licensee subscribes for a Free License Program, or a Perpetual License Plan, and as long as the Licensee keeps using the Software according to the applicable License Program terms, this Agreement shall remain in effect for an unlimited period of time, subject to ControlUp’s right to terminate this Agreement under sections 13.2 and 13.4 below.
- If the Licensee subscribes for an Annual License Plan which is subject to the payment of the Annual License Fee, this Agreement shall remain in effect for a period of one 1 year (“Annual Initial Term”). The term of the Agreement can be extended beyond the Initial Term for consecutive periods of 1 year each (“Annual Extended Term”) by paying ControlUp the Annual License Fee attributed to the Extended Term.
- If the Licensee subscribes for a Monthly License Plan which is subject to the payment of the Monthly License Fee, this Agreement shall remain in effect for a period of one 1 month (“Monthly Initial Term”). The term of the Agreement can be extended beyond the Initial Term for consecutive periods of 1 month each (“Monthly Extended Term”) by paying ControlUp the Monthly License Fee attributed to the Extended Term.
- During the Term of this Agreement, both the Licensee and ControlUp may terminate this Agreement, at any time, for any reason whatsoever (“Termination for Convenience”) by providing the other party 30 days prior written notice.
- In case of Termination for Convenience made by ControlUp, the Licensee shall be entitled to receive, as a sole remedy, a refund equal to the proportional portion of the Perpetual License Fee, or proportional portion of the Annual License Fee, as applicable, already paid to ControlUp for the Term. In case of Termination for Convenience made by the Licensee, the Licensee shall not be entitled to any refund whatsoever.
- Without derogating from ControlUp’s right to exercise Termination for Convenience as stated in section 13.2 to this Agreement, ControlUp shall also be entitled to terminate this Agreement by a written notice with immediate effect in the following events (“Termination for Cause”):
- 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.
- Current or future, governmental regulations prevent the continued delivery of ControlUp’s Services to the Licensee under this Agreement.
- Upon termination of this Agreement, for any cause whatsoever, the following terms shall apply:
- 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).
- The Licensee shall remove and destroy any copies of the Software installed by it, and/or by anyone on its behalf.
- Support & Maintenance
- 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 held ControlUp liable for any such undertaking. Notwithstanding the above, should ControlUp chooses 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.
- 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, even if the Licensee subscribes for a Free License Program. 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.
- In case Licensee subscribes for a Perpetual License Plan (as described in Section 12.3), but the Licensee has refrained from paying the Support Fee, then Licensor shall be entitled to transfer Licensee’s right to use the Software to the then current On Prem Mode only, and subject to the terms and conditions of this Agreement, without being eligible for any Support Services and/or Updates. For purposes herein, “On Prem Mode” means an operation of the main console and the monitor service in which certain login configuration, performance metrics, it events and licensing information are exchanged between Licensor on-premises server reside within the Licensee’s network and the main console and the monitor service securely communicates and exchanges information with Licensor’s on-premises server. Licensor’s configuration data and statistics are stored solely within the Licensee’s network and are never sent to Licensor’s servers.
- 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.
- 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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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 e-mail to the following E-mail 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 e-mail – 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 e-mail – 2 business days after such notice has been sent.
- 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.
- Modifications. ControlUp may change, according to 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, from time to time, to ControlUp’s website in order 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.
- 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: February 2021