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 Technologies Ltd. (the “Licensor”, “Company” or “ControlUp Technologies”) 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 Technologies.
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, DOWNLOADING 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.
1.1. "We" , "Us" ,"ControlUp Technologies", “ControlUp”, "Our" or the "Company" refer to ControlUp Technologies Ltd. an Israeli limited liability company, having its main place of business at 4 Hamelacha Street, Lod 7152010, Israel.
1.2. "Licensee" refers to the business entity and/or individual person consenting to, and entering into, this Agreement.
1.3. "Software" refers to the software, in object code format, provided to the Licensee together with this Agreement, including the Main Console, The Monitor Service, Agents and ControlUp Backend Servers, 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").
1.4. “Installation Date” refers to the date on which the Licensee installs the Software.
1.5. "License Program" refers to a certain combination, marked and chosen by the Licensee when purchasing a license, as further described in section 10.2.
1.6. "Support Services" refers to those support services corresponding to the License Program chosen by the Licensee.
1.7. "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.
1.8. "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.
1.9. "Main Console" refers to the IT Management system, known as "ControlUp Real-time" in the edition stipulated in the License Program the Licensee subscribed for, that is installed on the Licensee's Server.
1.10. “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.
1.11. "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.
1.12. “Reporting Portal” refers to a web based portal and its backend known as “ControlUP Insights” offering an operational intelligence solution for monitoring and analysis of enterprise network environments
1.13. “ControlUp Backend Servers” refers to software, database scripts and configuration elements providing backend services to the Main Console, the Monitor Service and Reporting Portal.
1.14. “ControlUp On-Premises Server” refers to software, database scripts and configuration elements providing backend services to the Main Console and the Monitor Service and which reside within the Licensee’s network.
1.15. "Our Servers" refers to servers belonging to ControlUp and/or third party providing Hosting service for ControlUp Backend Servers used by ControlUp.
1.16. "End Point" refers to each hardware or virtualized based station monitored by the Main Console or the Monitor Service under the terms of this Agreement, including, but not limited to, personal computers, laptops, terminal services, VDI, servers, screens etc.
1.17. “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.
1.18. "Server" refers to a single component of hardware enabling the installation of the Main Console and or The Monitor Service 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).
1.19. "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.
1.20. "User/s" refers to the Licensee and any individual on its behalf that is assigned with a ControlUp User Account.
1.21. "Concurrent Sessions" refers to the number of sessions currently established on all of the Licensee's End Points. The total amount of sessions is determined by the sum of user sessions and system (services) sessions. On Terminal Servers each user session is counted as a single session plus two sessions for the server itself. A workstation constitutes one session, whenever a user is logged to the work station. Any other server of any kind whatsoever (DC, Exchange, SQL, File Servers, etc.) constitutes 5 Concurrent Sessions, even if the no users are currently logged on to the Server.
1.22. "Standalone Mode" refers to an operation of the Main Console in which the ControlUp configuration data and statistics are stored solely within the Licensee's local area network and are never sent to Our Servers.
1.23. "Enterprise 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.
1.24. “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.
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, non-exclusive, non-transferable license to:
(a) Download, install and use a copy of the Software on one or more PC’s or Servers 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; and
(c) Assign certain amount of ControlUp User Accounts up to the amount the Licensee subscribed and paid for, as reflected in the License Program.
(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 is merely licensed to the Licensee, but not sold.
Any documentation that accompanies the Software is licensed for internal, non-commercial or reference purposes only.
3. Reservation of Rights and Ownership
3.1. ControlUp reserves all rights not expressly granted to the Licensee in this Agreement.
3.2. The Software is protected by copyright and other intellectual property laws, regulations and treaties.
3.3. ControlUp owns all rights, including, without limitation, intellectual property rights, title and interest in and relating to the Software.
3.4. The Licensee hereby declares that he is not nor shall he be entitled to any rights whatsoever, including, without limitation, intellectual property rights, in or arising from the Software.
3.5. The Licensee hereby declares that he is not nor shall he be entitled to any rights whatsoever, including, without limitation, intellectual property rights, in or arising from the Software.
4. Intellectual Property Rights
4.1. The Software, in whole or in part, as well as any extracts or output that the Licensee produce when using the Software (collectively, "the 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 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 Protected Material. It shall also be emphasized that this Agreement does not grant the Licensee a license in any source code.
4.2. 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 Protected Material.
4.3. The Licensee hereby declares and agrees to refrain from copying, modifying, adapting, translating or making derivative works based upon the 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.
4.4. “ControlUp” “ControlUp Logon Simulator” ControlUp Application Load time Profiler” 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.
4.5. 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.
4.6. Notwithstanding the foregoing, Licensor acknowledges and agrees that Licensee shall maintain all rights, title and interests in and to: (i) its respective pre-existing, or independently created or procured, patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Licensee IP”); and (ii) its own data, information and software (other than the Software herein) as stored on, collected from, or used in conjunction with Licensee’s hardware, end points, servers, and IT infrastructure (“Licensee Data”, and together with Licensee IP, the “Licensee Assets”). Notwithstanding anything herein to the contrary, Licensor expressly acknowledges and agrees that this Agreement does not convey any rights, title and interests in and to any Licensee Assets to Licensor, except as and where the Software requires Licensee Assets in order to function, Licensor is granted a limited, restricted, and revocable license to only those Licensee Assets required, and then only solely for the purpose of providing the Software for the applicable License term ordered. At all times, Licensee Assets shall remain the Confidential Information of Licensee subject to all obligations of Licensor herein, including Section 7.
5. The Licensee's Responsibilities, Restrictions and Obligations
5.1. The Licensee shall be solely responsible:
5.1.1. For selecting qualified Users to use 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.
5.1.2. 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.
5.1.3. For using the Software 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.
5.1.4. 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.
5.2. 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.
5.3. 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.
5.4. The following restrictions shall also apply to the Licensee's use of the Software:
5.4.1. The Licensee shall refrain from accessing the Software 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.
5.4.2. The Licensee shall not be entitled to: (i) license, sublicense, sell, resell, transfer, assign, distribute or commercially exploit or make the Software 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.
5.4.3. 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.
5.4.4. The Licensee shall not transfer any of its rights and obligations under this Agreement.
6. Warranties and Disclaimers
6.1. This section 6.1 shall apply during the Trial Term, or while the Licensee is using the Free License Program:
6.1.1. 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 DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AND CONDITIONS OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR RELIBILITY 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.
6.2. This section 6.2 shall apply while the Licensee is using Commercial License Program:
6.2.1. 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) the Software does not comprise any third party material, including but not limited to any elements of open source code, software, freeware or shareware except as set out in the applicable documentation and other material provided by ControlUp to the Licensee;
(iii) 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;
(iv) the Software and any new versions, releases and updates has been duly tested for bugs and viruses and does not contain any viruses, bugs, spyware, adware, time bombs, back-doors or other malicious code;
(v) ControlUp will discharge its obligations under the Agreement with all reasonable skill, care and diligence including but not limited to best Industry practice and (without limiting the scope of this section) in accordance with its own established internal procedures as applicable; and
(vi) ControlUp has the right to grant Licensee the license to use the Software, and the Software does not infringe upon the intellectual property right of any third party any third party.
(vii) 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 a 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
6.3. 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.
7. Limitation of Liability.
7.1. This Section 7.1 shall apply during the Trial Term, or while the Licensee is using the Free License Program:
7.1.1. 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 CONNECTION WITH THE SOFTWARE; OR (V) ANY OTHER MATTER RELATING TO THE SOFTWARE.
7.1.2. 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.
7.2. This Section 7.2 shall apply while the Licensee is using the Commercial License Program:
7.2.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, 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.
7.2.2. 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.
8. Confidentiality And Privacy
8.2. 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 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.
8.3. 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.
8.4. 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 9 shall apply only if the Licensee has purchased a Commercial License Program.
9.1. 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”.
9.2. 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. 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.
9.3. 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.
10. Fees And Payments
10.1. Following the Installation Date, the Licensee shall be entitled to use the Software, free of charge, for a period of 30 days (“Trial Term”). During the Trial Term, the Licensee shall be able to use all features and functionalities of the Software, and shall receive Support Services free of charge.
10.2. 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:
(i) “Free License Program”, which is free and includes a limited amount of Concurrent Sessions.
(ii) “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 an Enterprise Mode and/or On-Prem Mode and/or Standalone Mode.
10.3. 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:
(i) “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 “Maintenance & 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.
(ii) “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 11.1), 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.
(iii) “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 11.1), 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.
10.4. For Clarity, if the Licensee does not make any payment to purchase a Commercial 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.
10.5. 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.
10.6. 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.
10.7. 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.
11. Term, Termination and Effect of Termination
11.1. 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:
11.1.1. 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 11.2 and 11.4 below.
11.1.2. 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.
11.1.3. 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.
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".
11.2. 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.
11.3. 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.
11.4. Without derogating from ControlUp's right to exercise Termination for Convenience as stated in section 11.2 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"):
11.4.1. 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.
11.4.2. Current or future, governmental regulations prevent the continued delivery of ControlUp's Services to the Licensee under this Agreement.
11.5. Upon termination of this Agreement, for any cause whatsoever, the following terms shall apply:
11.5.1. 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).
11.5.2. The Licensee shall remove and destroy any copies of the Software installed by it, and/or by anyone on its behalf.
12. Support & Maintenance
12.1. ControlUp DOES NOT offer support and/or maintenance services for free, unless and to the extent specifically indicated in the License Program, the Licensee subscribed for, 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 be entitled to upgrade from time to time the Software to more advanced versions released, and if done so, ControlUp will not be under any obligation to retain any previous releases of the Software.
12.2. 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, and the Licensee shall not be eligible for any compensation for such cessation.
12.3. In case Licensee subscribes for a Perpetual License Plan (as described in Section 10.3), 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.
13.1. 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.
13.2. Governing Law. This Agreement shall be governed, construed, interpreted and enforced according to the laws of the State of Israel. The parties hereby irrevocably subject themselves to the exclusive jurisdiction of the competent courts located in the district of Tel-Aviv, Israel in connection with any dispute relating to the Software, or this Agreement.
13.3. 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.
13.4. 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.
13.5. 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.
13.6. 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.
13.7. 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.
Last updated: November 2016