End User License Agreement
THIS END USER LICENSE AGREEMENT (this “EULA”) is between the identified customer (“Licensee”) and Boecore, LLC dba Auria a Delaware limited liability company (“Licensor”, the “Company” or “Auria”). Licensor is the owner of certain software known as CYNTROS™ (the “Software”). Licensee wishes to obtain one or more licenses to use the Software in its business, and Licensor is willing to grant such license on the terms and conditions set forth herein.
Please read this EULA, all rules and policies related to the Software, and the Licensor Privacy Policy and Terms and Conditions (collectively, the “Agreement”) carefully before downloading or using the Software. This Agreement governs Licensee’s use of the Software. If Licensee signs an Order Form, downloads or otherwise uses the Software, Licensee will be bound by the terms of the Agreement. If Licensee does not or cannot agree to the terms of the Agreement, Licensee will not attempt to download or use the Software.
BY SIGNING AN ORDER FORM, INSTALLING OR USING THE SOFTWARE, LICENSEE (A) ACKNOWLEDGES THAT LICENSEE HAS READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENTS THAT LICENSEE IS OF LEGAL AGE (IF A USER) WITH THE AUTHORITY TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPTS THIS AGREEMENT AND AGREES THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS.
Section 1. Definitions.
(a) “Content and Services” means the features available within the Software, including standard and any add-on features, if applicable.
(b) “Node” means any physical or virtual device, such as a computer, server, laptop, desktop computer, mobile, container, or virtual machine instance, inside an end user’s network which has a unique combination of MAC address and/or internal internet protocol address, or other unique system identifiers, that generates traffic which Cyntros is monitoring.
(c) “Server” means any physical or virtual device, such as a computer, server, laptop, desktop computer, container, or virtual machine instance that is running the Software to monitor traffic from other Nodes.
(d) “Client” means any physical or virtual device, such as a computer, server, laptop, desktop computer, container, or virtual machine instance that accesses the Software running on a server through the web application, or an application programmer interface (API) provided by a Server. This includes cases where a Server may also act as a Client.
(e) “Order Form” means the Cyntros order form or an external order form, and any and all related statements of work (SOW).
(f) “Reseller/MSP” means an Auria-authorized seller of Cyntros other than Licensor, using their own Order Form and Sales Agreement, that may or may not offer additional services in conjunction with the purchase of a license.
(g) “User” means an employee, agent or contractors of Licensee that accesses the Software directly through a Server, or through a web application API provided by the Server.
Section 2. License. Subject to receipt by Auria of applicable license fees and Licensee’s compliance with the terms of this EULA, Company grants Licensee a limited, revokable, nonexclusive, and nontransferable license to use the Software, on a User, Server and monitored Node basis. As set forth in the Order Form, the Software is licensed for a specified number of Users, Servers and/or monitored Nodes (each a “license”). Licensee acknowledges and agrees that each license shall generally provide for Server(s) to run the Software, Users to access the Software, and/or Nodes to be monitored by the Software. Licensee is permitted to:
(a) download, install, and use a serialized copy of the Software on the number of Servers identified on the Order Form, all within Licensee’s organization, strictly in accordance with the Software’s documentation;
(b) allow the number of authorized Users identified on the Order Form to access, download, and use the Content and Services made available through the Software on the Server(s), strictly in accordance with this EULA and the Terms of Use applicable to such Content and Services as set forth herein;
(c) otherwise use the Software in compliance with the Agreement.
Licensee is permitted make a single copy of Software for normal back-up and archival purposes only. Only Licensee is permitted to make use of the back-up copy. All such authorized copies must comply with Section 7 herein.
Section 3. Use Restrictions. Licensee shall not, and shall not permit Users to:
(a) copy the Software, except as expressly permitted by this EULA;
(b) Modify the Software or incorporate the Software into any other product translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Software, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time or by distributing (or failing to keep secure) account credentials to someone other than the assigned User;
(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Software; or
(g) Transmit, install, or otherwise export or re-export the Software to any country into which import or transmission of such Software has been prohibited by the United States government.
Performing the acts identified in Section 3 (a) through (h) herein, or permitting or assisting a third party in committing such acts, will constitute a material breach of this Agreement.
Section 4. Responsibility of Users. Licensee acknowledges and agrees that Licensee will be responsible and liable for any and all User actions relating to the Software, including violations of this Agreement. Licensee agrees that all Users have read and agree to be bound to this Agreement. It is understood that references herein to Licensee include references to each individual User of Licensee.
Section 5. Support Services. Licensee may elect to include certain integration and support services, as listed on the Order Form. Support Services may be provided by Licensor or Reseller/MSP, depending on purchase method. Support levels may be increased or decreased via an amended Order Form, executed by both parties.
(a) Integration Services. Standard Integration Services include integration and basic configuration and set up of the Software with a list of compatible software and devices to ensure the Software and existing software function cohesively on each Server. If a Licensee has more complicated set-up needs than the Standard Integrations Services, Custom Integration Services shall be either performed on a time and materials basis, and/or agreed upon under a separate statement of work.
(b) Support Services.
(a) Standard Support Services provide technical and troubleshooting support through an email, with a one-day response time between 8:00 am and 5:00 pm Pacific Time.
(b) Gold Support Services provide technical and troubleshooting support through email, with a four-hour response time during normal business hours.
(c) Platinum Support Services provide technical and troubleshooting support through email, with one-hour response time during normal business hours, plus a designated customer service phone number available 24/7, with the exception of federal holidays.
Section 6. Reservation of Rights. Licensee acknowledges and agrees that the Software is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software under this EULA, or any other rights thereto other than to use the Software in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to Licensee in this Agreement.
Licensor reserves all rights not expressly granted in this Agreement. No rights will be granted or implied by waiver or estoppel. Rights to access or use Software on a device do not give Licensee any right to implement Licensor patents or other Licensor intellectual property in the device itself or in any other software or devices.
Licensor reserves the right to perform benchmark testing of Licensee’s Software against the model Software or other customer Software. Licensor reserves the right to modify, suspend, or cancel the Software (or any Content and Services) at any time and for any reason. If such modifications are made, Licensor will notify Licensee.
Section 7. Intellectual Property Rights. The Software is protected under national and international copyright, trade secret, trademark, and patent laws. All right, title, and interest to the Software shall remain with Licensor. The license granted herein does not constitute a sale of the Software or any portion or copy of it. A copy of the Software is provided to Licensee and each User only to allow Licensee to exercise its rights under the license.
The Software is licensed to Licensee for Licensee internal use only, and the Software or any derivative or byproduct of the Software may not be sub-licensed, re-sold, rented, or distributed to or used by (or for the benefit of) any other party. Any enhancements, improvements, modifications or derivatives to the Software arising from licensee’s use shall be owned by Company.
Except as otherwise provided by law, Licensee agrees not to (or permit others to) (i) decipher, reverse engineer, de-compile, disassemble, or otherwise attempt to derive the source code of the Software, (ii) create derivative works based on the Software or any part thereof, (iii) develop methods to enable unauthorized parties to use the Software, (iv) develop any other product containing any of the concepts and ideas contained in the Software or (v) remove any Software identification, trademarks, copyright or other notices. Licensee may not assign Licensee’s rights under this Agreement without the prior written consent of Licensor.
Section 8. Collection and Use of Licensee Personal Information. Licensee acknowledges that when a User downloads, installs, or uses the Software, Company may use automatic means (including, for example, cookies and web beacons) to collect information about each, Server, Client, and about User use of the Software. Licensee and Users also may be required to provide certain information about Licensee and/or User as a condition to downloading, installing, or using the Software or certain of its features or functionality, and the Software may provide Licensee and Users with opportunities to share information about Licensee and/or Users with others. All information we collect through or in connection with this Software is subject to our Privacy Policy located at https://cyntros.ai/privacy-policy/. By downloading, installing, using, and providing information to or through this Software, Licensee consents to all actions taken by Company with respect to Licensee information in compliance with the Privacy Policy.
Section 9. Ownership of Licensee Data.
(a) Licensee Data. “Licensee Data” means all data, information, or material provided to Company by Licensee in the course of using the Software (including during any Integration Services). Company and Licensee agree that Licensee is the sole owner of all Licensee Data. Licensee grants Company a non-exclusive, royalty free, worldwide, non-transferrable right and license to use, copy, modify, perform and share Licensee Data during the term of this Agreement for the purposes of providing the Software and associated services.
(b) Closed Machine Learning Model. Licensee acknowledges that the Software is a closed machine learning model, meaning the Licensee Data the Software learns shall not be aggregated with other customers’ data. Licensee agrees that Company may develop and train the Software using Licensee Data. Company is the sole owner of all machine learning work product (a “Developed Model”) resulting from Licensee Data, including improvements in Software, and other reports, developments, and all other features resulting from Licensee’s data. Company grants Licensee a non-exclusive, non-transferable, non-sublicensable license to access and use the Developed Model created from Customer Data under the term of this Agreement.
Section 10. Software Updates. Company may from time to time in its sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features and modifications (collectively, including related documentation, “Updates”). Licensee agrees that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Generally, Updates may be provided at Auria’s sole discretion to Licensees pursuant to the following methods:
(a) the Software will automatically download and install all available Updates; or
(b) a User may receive notice of or be prompted to download and install available Updates.
Users shall promptly download and install all Updates and acknowledge and agree that the Software or portions thereof may not properly operate should Users fail to do so. Licensee further agrees that all Updates will be deemed part of the Software and be subject to all terms and conditions of this EULA.
Section 11. Third-Party Materials. The Software may display, include, or make available third-party content (including data, information, software, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). Licensee acknowledges and agrees that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to Licensee or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to Licensee, and Licensee accesses and uses them entirely at Licensee’s own risk and subject to such third parties’ terms and conditions.
Section 12. Term. The term of this EULA (the “Term”) is set forth on the Order Form and will continue in effect until the earlier of its expiration or termination as set forth in Section 13. Unless otherwise noted in the Order Form, this EULA automatically renews for additional successive and equivalent terms unless at least thirty (30) days before the end of the then-current term, either Party provides written notice to the other Party that it does not intend to renew. Unless otherwise agreed to, all Software pricing will increase by four percent (4.0%) upon each renewal.
Section 13. Termination.
(a) Termination for Cause. Company may terminate this Agreement immediately upon written notice if Licensee and/or any User violate any of the terms and conditions of this Agreement.
(b) Upon termination or expiration of this Agreement, all rights granted to Licensee and/or Users under this Agreement will also terminate; and Licensee and all Users must cease all use of the Software and delete all copies of the Software from all Servers and accounts.
(c) Termination will not limit any of Company’s rights or remedies at law or in equity.
Section 14. Limited Warranty; Disclaimer of Other Warranties
THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET LICENSEE REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, SOFTWARES, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
NO GUARANTEE. LICENSEE AGREES THAT: (I) AURIA DOES NOT GUARANTEE OR WARRANT THAT CYNTROS WILL FIND, LOCATE, REPORT OR DISCOVER ALL OF LICENSEE’S OR LICENSEE AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND LICENSEE AND LICENSEE AFFILIATES WILL NOT HOLD AURIA RESPONSIBLE THEREFOR; AND (II) THE SOFTWARE AND SERVICES DO NOT CONSTITUTE ANY FORM OF REPRESENTATION, WARRANTY OR GUARANTEE THAT LICENSE’S SYSTEMS ARE SECURE FROM EVERY ATTACK, EVEN IF FULLY IMPLEMENTED.
Section 15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, ITS OFFICERS, EMPLOYEES, DIRECTORS, SUBSIDIARIES, REPRESENTATIVES OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO LICENSEE’S USE OF OR INABILITY TO USE THE SOFTWARE OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) INDIRECT SPECIAL, CONSEQUENTIAL, OR DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO LICENSEE.
Section 16. Dispute Resolution. Any controversy concerning the interpretation of this Agreement, or any breach thereof, shall be settled by final and binding arbitration in accordance with the then existing rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction over the party against which the award is entered. The arbitration shall be conducted in Colorado Springs, Colorado. If Licensee wishes to pursue arbitration, Licensee must submit a letter requesting arbitration and describing the complaint to the Company at [email protected] or 1755 Telstar Drive, Suite 400, Colorado Springs, CO 80920.
17. Miscellaneous.
17.1 Compliance with Laws. Licensee shall at all times comply with all applicable laws, statutes, rules, regulations and ordinances. Licensor has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
17.2. Amendment. This Agreement may be amended by the Licensor at any time without notice. Licensee and Users continued use of the Software after any amendments to this Agreement shall mean agreement and acceptance of such changes, so all changes should be reviewed carefully. The current version of this EULA and Agreement shall be at https://cyntros.ai/eula/.
17.3. Waiver; Conflict of Terms. No waiver by either Party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall prevail.
17.4. Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed and the remainder of this Agreement shall continue in full force and effect.
17.5. Governing Law. This Agreement shall be governed by the laws of Colorado, without regard to conflict of law provisions.
17.6. Indemnification. Licensee agrees to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to Licensee’s use or misuse of the Software or Licensee’s breach of this Agreement, including but not limited to the content submitted or made available through this Software.
17.7. Export Regulations. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
17.8. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
17.9. Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between Licensee and Company with respect to the Software and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Software.
17.10 Non-Assignment. Without Auria’s prior written consent, neither this Agreement nor any interest herein or part hereof will be transferable or assignable by the Licensee, by operation of law or otherwise.
17.11 Force Majeure. Except for payment obligations, neither Party will be responsible for failure or delay of performance if caused by an act of nature, war, hostility or sabotage; an electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated Party. Each Party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than ten (10) days, either Party may cancel unperformed Support Services upon written notice.