IMPORTANT! CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS SET FORTH IN THIS END-USER LICENSE AGREEMENT. C2S CONSULTING GROUP LLC. LICENSES SOFTWARE AND RELATED MATERIAL ONLY ON THE CONDITION THAT LICENSEE ACCEPTS ALL THE TERMS CONTAINED OR REFERENCED IN THIS AGREEMENT
C2S CONSULTING GROUP, LLC.
CLOUDPEEL END USER LICENSE AGREEMENT
THIS CLOUDPEEL END USER LICENSE AGREEMENT (the “EULA”) is the terms and conditions governing the delivery of “Services” between C2S Consulting Group, LLC. (“C2SCG”) and customer (“Customer”) utilizing such Services. Each of C2SCG and Customer may be referred to hereinafter as a “Party” or together as the “Parties.” CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING THIS EULA BEFORE ACCESSING OR USING ANY SERVICES OF C2SCG. BY ACCESSING OR USING SUCH SERVICES, CUSTOMER CONFIRMS THAT CUSTOMER HAS READ AND ACCEPTS THIS EULA. C2SCG’S OFFER TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO THE SERVICES IS EXPRESSLY LIMITED TO THIS EULA AND CONDITIONED ON CUSTOMER’S ASSENT HERETO. As used herein, the term “Affiliates” with respect to a party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such party.
Section 1 DELIVERY OF SERVICES AND TERM
(a) Service Description. A description of Services shall be included in the applicable AWS Marketplace listing (“Service Description”). Such Service Description shall also include the roles and responsibilities of the Parties after the Service is activated.
(b) Subscription Term. The term for each Service ordered through the AWS Marketplace (each a “Subscription Term”) commences and terminates as set forth on the AWS Marketplace.
1.2 Activation and Support.
(b) Customer Responsibilities for Services.
(i) Provisioning. Customer will ensure
(A) Customer personnel who are knowledgeable regarding their information technology systems are available to assist with the provisioning of Services; and (B) information provided by Customer to C2SCG regarding Customer systems is accurate and complete.
(ii) C2SCG Support. When requesting C2SCG support regarding Services under this EULA, Customer agrees to follow C2SCG’s procedures when requesting support.
(iii) Updates, Version Support. Customer shall promptly implement all updates, Service versions and error corrections provided by C2SCG; and maintain C2SCG supported versions of required third party hardware and software, if any.
Section 2 – CONFIDENTIAL INFORMATION; INTELLECTUAL PROPERTY; OWNERSHIP; LICENSE GRANT
2.1 Confidential Information.
(a) Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all information in tangible or intangible form that
(i) is marked or designated as confidential or
(ii) under the circumstances of its disclosure, a reasonable person should consider to be confidential.
Confidential Information of C2SCG includes, but is not be limited to, C2SCG Technology. “C2SCG Technology” means C2SCG’s proprietary technology used by C2SCG to provide the Services, including but not limited to, the Hardware, the software tools, scripts, parsers, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world. Confidential Information of Customer includes Customer Technology as well as customer data received in the performance of C2SCG’s Services.
Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this EULA, nor disclose to any third party (except (i) as required by law subject to compliance with Section 2.1(c) or (ii) to that party’s attorneys, accountants and other advisors as reasonably necessary, provided that such third parties are subject to obligations of confidentiality and non-disclosure no less restrictive than those obligations set forth in this EULA), any of the other party’s Confidential Information. Each party also agrees that it will take reasonable precautions to protect the confidentiality of the other party’s Confidential Information, which precautions will be at least as stringent as a party takes to protect its own Confidential Information.
“Customer Technology” means Customer’s proprietary technology, including Customer’s Internet operations design, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), know-how, trade secrets and any related intellectual property rights throughout the world.
(b) Exceptions. Confidential Information does not include information that:
(i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party;
(ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party;
(iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this EULA by the receiving party; or
(iv) is independently developed by the receiving party not in reliance upon, use of, or knowledge of the Confidential Information.
(c) Disclosures Required By Law. If the receiving party or any of its employees or agents are requested or required (by oral questions, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process) to disclose any of the Confidential Information of the disclosing party, the receiving party shall not disclose the Confidential Information without providing the disclosing party prior written notice as practicable of any such request or requirement so that the disclosing party may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this EULA. Notwithstanding the foregoing, the receiving party shall exercise reasonable efforts to preserve the confidentiality of the Confidential Information including by cooperating with the disclosing party to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by the applicable tribunal.
2.2 Intellectual Property.
Except for the rights expressly granted in this EULA, this EULA does not transfer from C2SCG to Customer any C2SCG Technology, and all right, title and interest in and to C2SCG Technology remains solely with C2SCG. Except for the rights expressly granted in this EULA, this EULA does not transfer from Customer to C2SCG any Customer Technology, and all right, title and interest in and to Customer Technology remains solely with Customer. Each of C2SCG and Customer agree that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, or to read or redistribute existing source code or other trade secrets from the other party.
(b) Open Source Software. C2SCG’s products and Service solutions may include certain open source security management tools, utilities and other software. Such open source software is free software that may be distributed or modified under the terms of their relevant license. C2SCG hereby disclaims all copyright interest in such open source components. Any fees paid by Customer to C2SCG are for C2SCG’s proprietary software only, and not for any open source components of the software. Any license associated with an open source component applies only to that open source component and not to C2SCG’s proprietary software or any other third-party licensed software.
2.3 Access Rights.
(a) General. Subject to the terms of this EULA and to the extent required to receive the Services during the applicable Subscription Term, C2SCG hereby grants to Customer a non-transferable, non-exclusive, limited license for Customer’s employees (each referred to herein as a “User”) to access and use the applicable Services (and C2SCG Technology made available therein) solely for Customer’s internal business use.
(b) Restrictions. Customer agrees that Customer and its Users will not:
(i) sell, lease, license or sublicense access to, or use of, any of the Services and C2SCG Technology;
(ii) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile any of the Services and C2SCG Technology in any way for any reason;
(iii) provide, disclose, divulge or make available to, or permit use of any of the Services and C2SCG Technology by, any third party;
(iv) copy or reproduce all or any part of the Services and C2SCG Technology; (v) interfere with the Services in any way;
(vi) engage in spamming, mailbombing, spoofing or any other fraudulent, illegal or unauthorized use of the Services; or
(vii) introduce into or transmit through any of the Services and C2SCG Technology any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; or
(viii) release to any third party the results of any evaluation of the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of C2SCG.
Section 3 – C2SCG REPRESENTATIONS, WARRANTIES AND COVENANTS
3.1 Authority and Performance.
C2SCG represents and warrants that
(i) it has the legal right and authority to enter into this EULA and perform its obligations under this EULA,
(ii) the performance of its obligations and delivery of the Services to Customer will not violate, or cause a breach of, any agreements between C2SCG and any third parties, and
(iii) C2SCG shall provide Services in a manner materially consistent with the Service Description.
3.2 No Other Warranty.
EXCEPT AS SET FORTH IN THIS EULA, C2SCG AND ITS THIRD PARTY LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. C2SCG AND ITS THIRD PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, COMPLETENESS, SEQUENCE, TIMELINESS OR AVAILABILITY OF THE SERVICES OR C2SCG TECHNOLOGY. NO SALES PERSONNEL, EMPLOYEES, AGENTS OR REPRESENTATIVES OF C2SCG OR ANY THIRD PARTY ARE AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY OR COVENANT ON BEHALF OF C2SCG OR ANY OF ITS THIRD PARTY LICENSORS.
ACCORDINGLY, ADDITIONAL ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHOULD NOT BE RELIED UPON AND ARE NOT PART OF THIS EULA. NEITHER C2SCG NOR ANY OF ITS AFFILIATES OR THIRD PARTY LICENSORS REPRESENT OR WARRANT THAT THE SERVICES OR C2SCG TECHNOLOGY WILL BE UNINTERRUPTED, ERROR-FREE OR CORRECT. C2SCG AND ITS THIRD PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION OF SERVICES, DELAYS OR ERRORS CAUSED BY ANY TRANSMISSION OR DELIVERY OF THE SERVICES, DATA OR ANY OTHER INFORMATION OR CAUSED BY ANY COMMUNICATIONS SERVICE PROVIDERS. DEPLOYMENT OF C2SCG SERVICES IN A CUSTOMER NETWORK DOES NOT ACHIEVE THE IMPOSSIBLE GOAL OF RISK ELIMINATION, AND THEREFORE, C2SCG MAKES NO GUARANTEE THAT INTRUSIONS, COMPROMISES, OR ANY OTHER UNAUTHORIZED ACTIVITY WILL NOT OCCUR ON A CUSTOMER NETWORK. THIS SECTION SHALL SURVIVE TERMINATION OR EXPIRATION AND NON-RENEWAL OF THE EULA.
Section 4 – CUSTOMER REPRESENTATIONS, WARRANTIES AND OBLIGATIONS
4.1 Authority and Performance; No Third Party Beneficiaries. Customer represents and warrants that
(i) it has the legal right and authority to enter into this EULA and perform its obligations under this EULA (and to permit C2SCG to perform the Services),
(ii) the performance of its obligations and use of the Services (by Customer, its customers and users) will not violate, or cause a breach of, any agreements between Customer and any third parties and
(iii) no consent of any third party shall be required for Customer to receive the Services.
Section 5 – INSURANCE
5.1 C2SCG Minimum Levels.
C2SCG agrees to keep in full force and effect during the term of this EULA workers’ compensation insurance in an amount not less than that required by applicable law.
Section 6 – LIMITATIONS OF LIABILITY
6.1 Consequential Damages Waiver.
In no event will either party be liable or responsible to the other for any type of incidental, exemplary, special, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability, breach of contract, breach of warranty, acts and omissions of the party claiming damages or the party from whom damages are sought or otherwise.
6.2 Limitation of Liability.
Except for a party’s breach of Section 4.1 (“Confidential Information”) or any indemnification obligations under Section 9 (“Indemnification”) of this EULA, the maximum total liability for any performance or non-performance of this EULA shall be limited to the total fees paid to C2SCG by Customer in the twelve month period preceding the date upon which any such claim first accrued. Further, no cause of action which accrued more than one (1) year prior to the filing of a suit alleging such cause of action may be asserted against C2SCG.
6.3 Basis of the Bargain; Failure of Essential Purpose.
The parties agree that the limitations and exclusions of liability and disclaimers specified in this EULA represent the parties’ agreement as to the allocation of risk between the parties in connection with C2SCG’s obligations under this EULA, and that such limitations, exclusions and disclaimers will survive and apply even if found to have failed of their essential purpose. The parties acknowledge that C2SCG has set its prices and entered into this EULA in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth in this EULA, and that the same form an essential basis of the bargain between the parties.
Section 7 – INDEMNIFICATION
7.1 Mutual Indemnification.
Subject to any limitations set forth in this EULA, each party will indemnify, defend and hold the other harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any third party (each, an “Action”) against the other or its affiliates alleging damages caused by the gross negligence or willful misconduct of the indemnifying party.
7.2 C2SCG IP Infringement Indemnification.
C2SCG shall indemnify, defend and hold harmless Customer against any Action against Customer or any of its affiliates alleging that the C2SCG Technology, or any part thereof, or the use thereof, infringe upon a copyright, patent or trade secret of such third party. If the C2SCG Technology, or any part thereof, are held to infringe a copyright or patent or result from the misappropriation of a trade secret, or in C2SCG’s sole discretion, are likely to infringe a copyright or patent or resulted from the misappropriation of a trade secret, C2SCG (at C2SCG ‘s sole option) shall
(a) procure for Customer the right to continue using the C2SCG Technology;
(b) replace or modify the C2SCG Technology with technology having similar functionality; or
(c) refund to Customer the unearned portion of any fee paid by Customer for use of the C2SCG Technology through the Services, provided that Customer’s use of the Services (and the C2SCG Technology) is terminated.
C2SCG will have no responsibility under this Section to the extent the Action arises from:
(i) modification of the C2SCG Technology not carried out by C2SCG or at its direction (which is prohibited under section 2 of this EULA if performed by the Customer);
(ii) Customer’s failure to install an enhancement provided at no additional charge that would have avoided the alleged infringement;
(iii) failure to use the C2SCG Technology in accordance with the documentation, if any; or
(iv) combination of the C2SCG Technology with technology not provided, authorized or recommended by C2SCG in writing, unless the C2SCG Technology were designed to be used in such combination.
7.3 Indemnification by Customer.
Customer agrees to indemnify, defend, and hold C2SCG harmless from and against any and all claims, losses, liabilities and damages, including reasonable attorney’s fees, arising from any and all third party claims brought against C2SCG that arise out of the scanning, testing and/or evaluation of incorrect or unauthorized IP Addresses that are provided by Customer.
7.4 Indemnification Procedures.
Each party’s obligations under this Section 9 shall arise only if:
(a) the party seeking to be indemnified (the “Indemnified Party”) promptly notifies the other party (the “Indemnifying Party”) in writing of any such Action, provided that any delay shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that it was prejudiced by the delay;
(b) the Indemnifying Party has sole control of the defense and settlement of such Action, provided that the Indemnifying Party shall not enter into any settlement, without the Indemnified Party’s prior written consent, that would require the Indemnified Party to take any action, or refrain from taking any action, other than permitting the Indemnifying Party to pay money damages on the Indemnified Party’s behalf; and (c) the Indemnified Party fully cooperates with the Indemnifying Party.
Section 8 – TERMINATION
8.1 Termination For Cause.
Either party may terminate the Agreement, effective as of the date specified in written notice of termination provided to the other party, if:
(i) the other party breaches any material term or condition of this EULA and fails to cure such breach within thirty (30) business days after receipt of written notice of the same;
(ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or
(iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
8.2 Effect of Termination.
Upon the effective date of expiration and non-renewal or termination of this Agreement (the “Date of Termination”): within thirty (30) days following written request following such termination, each party will return or destroy all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirements and with respect to data received in the performance of C2SCG’s Services, such data will be destroyed in accordance with C2SCG’s standard policies;
The following provisions will survive any expiration, cancellation or termination of this EULA: Sections 2, 3, 4, 6, and 9.
Section 9 – MISCELLANEOUS PROVISIONS
9.1 Force Majeure.
Neither party will be liable for any failure or delay in its performance under this EULA due to any cause beyond its reasonable control, including, but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, third-party discontinuation or removal from production of application interface protocols (“APIs”) used for Services, or failure of the Internet (each a “Force Majeure Event”), provided that the delayed party:
(a) gives the other party prompt notice of such cause, and
(b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
If C2SCG is unable to provide Services for a period of thirty (30) consecutive days as a result of a continuing Force Majeure Event, Customer may cancel the Services and this EULA on written notice to C2SCG. Such termination will be effective on the date specified in the written notice.
9.2 Government Regulations.
Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this EULA without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
9.3 No Third Party Beneficiaries.
C2SCG and Customer agree that, except as otherwise expressly provided in this EULA, there shall be no third party beneficiaries to this EULA, including but not limited to the insurance providers for either party or the customers of Customer.
9.4 Governing Law; Jurisdiction.
This EULA and the rights and obligations of the parties created hereby will be governed by and construed in accordance with the laws of the State of Virginia without regard to its conflict of law rules and specifically excluding from application to this EULA that law known as the United Nations Convention on the International Sale of Goods. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this EULA or the Services provided hereunder. Failing that, if any action is brought whatsoever related to this EULA or the Services, jurisdiction and venue shall lie exclusively in the federal and state courts sitting in Reston County, Virginia.
If any provision of this EULA is determined to be invalid or unenforceable, that provision shall be deemed stricken and the remainder of this EULA will continue in full force and effect insofar as it remains a workable instrument to accomplish the original intent and purposes of the parties, and, if possible, the parties will replace the severed provision with a provision that reflects the intention of the parties with respect to the severed provision but that will be valid and enforceable.
A delay or omission by either party hereto to exercise any right or power under this EULA shall not be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants to be performed by the other or any breach thereof will not be construed to be a waiver of any succeeding breach thereof or of any other covenant herein contained. All waivers shall be in writing and signed by the party waiving its rights.
Either Party may assign this Agreement in whole (and not in part) only as part of a corporate reorganization, consolidation, merger, sale of all or substantially all of its assets, or transaction or series of related transactions that results in the transfer of fifty percent (50%) or more of the outstanding voting power of assignor, provided that the assignee agrees to be bound by the terms and conditions of this EULA and the assignor remains liable for the obligations of the assignee. The Parties may not otherwise assign its rights or delegate its duties under this EULA either in whole or in part without the prior written consent of the other Party, and any attempted assignment or delegation without such consent will be void. C2SCG may delegate the performance of certain Services to wholly owned subsidiaries, provided C2SCG controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This EULA will bind and inure to the benefit of each party’s successors and permitted assigns.
Any notice or communication required or permitted to be given under this EULA may be delivered by hand, by e-mail, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as provided to AWS Marketplace or at such other address as may hereafter be furnished in writing by either party to the other party. Notice may not be delivered by facsimile. Such notice will be deemed to have been given as of the date it is delivered, mailed, faxed or sent, whichever is earlier. 9.9 Relationship of Parties. C2SCG is an independent contractor to Customer and this EULA will not establish any relationship of partnership, joint venture, employment, franchise or agency between C2SCG and Customer. Neither C2SCG nor Customer will have the power to bind the other or incur obligations on the other’s behalf.
9.10 Section Headings; Pronouns; Plural and Singular.
The article and section headings in this EULA are for reference purposes only and shall not affect the meaning or interpretation of this EULA. References in this EULA to a designated “Article” or “Section” refer to an Article or Section of this EULA unless otherwise specifically indicated. All pronouns used in this EULA shall be construed as including all genders and the neuter. All capitalized defined terms used in this EULA are equally applicable to their singular and plural forms.
9.11 Entire Agreement.
This EULA and all documents incorporated into this EULA by reference, constitute the entire agreement between the parties with respect to the subject matter hereof, and supersede all of the prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter of this EULA.
This EULA may be amended, modified, supplemented or changed only by a written document signed by authorized representatives of C2SCG and Customer.
C2SCG CONFIDENTIAL AND PROPRIETARY
C2SCG – US EULA – 2018-06-11