This end-user license agreement (“EULA”) is a legal agreement between (a) you (an individual or a single entity), and (b) Canfield Consulting Group, LLC (“CCG”) that governs the use of the Documentation, Software, and Appliance (as such terms are defined below), that is not otherwise subject to a separate license agreement between you and CCG or its suppliers. BY CLICKING ON THE “ACCEPT” BUTTON BELOW, INSTALLING OR ACTIVATING THE SOFTWARE, OR USING THE DOCUMENTATION, SOFTWARE, OR APPLIANCE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE DOCUMENTATION, SOFTWARE OR APPLIANCE. YOU WILL NOT BE ENTITLED TO A REFUND OF ANY AMOUNTS PAID OR DUE. You are encouraged to test the “Evaluation Version” of the Software and Appliance to ensure that they meet your needs before purchase.
An amendment or addendum to this EULA may accompany the Software or Appliance. The most current version of this EULA is available on the CCG website, www.cancgroup.com/[add].
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold.
|A||“Agreement” means any separate agreement, if any, between you and (i) CCG or (ii) CCG’s reseller or distributors, including evaluation, installation, or service agreements.|
|B||“Appliance” means the AdminCore, the Nodes, and the Sensors. “AdminCore” means CCG’s proprietary software and central architecture residing on the server(s) supplied by CCG that receives data from the Sensor(s) and provides the monitoring function and analysis for CheckMate. “Node” means CCG’s proprietary software residing on the server(s) supplied by CCG that provide the analytics, data processing, data retention, and data redundancy. “Sensor” means CCG’s proprietary software residing on the hardware provided by CCG that provides the data to the AdminCore for analysis.|
|C||“CCG Website” means the URL cancgroup.com, which are comprised of various web pages, tools, information, software, content, and features, operated by CCG.|
|D||“Confidential Information” means the trade secrets and proprietary information of CCG and its licensors that is not generally known to the public, whether such information is in tangible or intangible form, and includes IP Rights.|
|E||“Documentation” means the associated media, printed materials, and “online” or electronic documentation distributed with the Appliance or Software.|
|F||“IP Rights” means the intellectual property rights, including copyrights, patents, patents pending, trademarks and trade secrets, in and to the Appliance, AdminCore, Nodes, Sensors, Software, Documentation, algorithms, databases, and the CCG’s websites (including related software, images, photographs, animations, video, audio, music, text, and content) owned by CCG or its licensors.|
|G||“Include”, when used in this Agreement, the word “include”, “includes” and “including”, shall be deemed to be followed by the phrase “without limitation.”|
|H||“Permitted Number of Interfaces” means the number of paid licenses for the Internet Protocol Version 4 (IPv4) or Internet Protocol Version 6 (IPv6) addresses used to collect data by the Sensor. A “non-permitted interface” is the unauthorized use of the Software to collect data from IPv4 or IPv6 addresses that exceeds the number of paid licenses.|
|I||“Service” means the services you have elected to receive from CCG under any Agreement.|
|J||“Site” means the location where the Appliance is delivered, or the location specified under any Agreement for the delivery and installation of the Appliance and each of its components.|
|K||“Software”means (i) all of the software code, whether as source code or object code, of the all-in-one cybersecurity suite of software products referred to as “CheckMate” that is comprised of CCG’s “Phen(AI),” “Cognoscenti,” “CanSecure,” “NeTERS,” and “SmartLog Analyzer” software, and each of their underlying programs and subroutines, whether provided together, separately, or in combination, directly on the Appliance or its components, or by electronic download, on physical media, or by any other method of distribution, and (ii) upgrades, updates, patches, additions, deletions, and modifications to the CheckMate software.|
2. ENTERPRISE SOFTWARE LICENSE & RESTRICTIONS
Subject to your compliance with all of the terms of this EULA and any Agreement, CCG grants you a non-exclusive, non-sublicensable, revocable, limited license to use the Software as provided under this EULA.
|A||Internal Production. Upon receipt of payment by CCG of the fees for the Software and Appliances, and the payment of the license fees for the Permitted Number of Interfaces, you may use the Software and Appliance at the Site in object code form solely for your internal production purposes.|
|B||Paid Licenses. The maximum number of interfaces that may access or otherwise utilize the Services or functionality of the Software and Appliance at any given point in time is equal to the number of paid licenses for the Permitted Number of Interfaces.|
|A||No Copies. You may not make any copies of the Software, including backup copies of the Software, except as permitted under this EULA, if at all.|
|B||Disassembly. You may not break-down, open, replace parts, remove drives, or disassemble the Appliances or any components of the Appliances.|
|C||Transfer. You may not rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense, assign, or transfer your rights in the Software to any third party, or authorize all or any portion of the Software to be copied onto, or distributed to, another user's computer.|
|D||No Consumer Use. You may not distribute, sublicense, or otherwise provide the Software or Appliance for use by consumers.|
|E||No Sharing. The Software may not be shared, installed or used concurrently on different computers unless an additional license fee for such use has been paid. The Software may not be used to monitor more than the Permitted Number of Interfaces.|
|F||No Other Networks. Unless otherwise expressly permitted in this EULA, no other server or network use of the Software is permitted, including use of the Software (i) either directly or through commands, data or instructions from or to another computer or (ii) for internet or web hosting services.|
|G||Proprietary Notices. You may not, remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in the Software or Appliance.|
|H||Export. The Appliance and Software may only be used in the United States, and any export of the Appliance or Software is strictly prohibited. You agree that the Software or Appliance will not be shipped, transferred, exported, or re-exported, directly or indirectly, into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, an entity, or otherwise located within, formed under, or subject to, an embargoed nation (including Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria) and that you are nototherwise prohibited under the Export Laws from receiving the Software or Appliance.|
|I||Limited Use. The Software and Appliance may only be used in connection with cybersecurity monitoring and for no other purpose.|
|J||No Modification. You may not modify, adapt, translate or create derivative works based upon the Software.|
|K||No Reverse Engineering. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software, or reduce the Software to human-readable form, except and only to the extent that such activity is expressly permitted by applicable law, where it is essential to do so in order to achieve operability of the Software with another software program, and you have first notified CCG to provide the information necessary to achieve such operability, and CCG has refused to make such information available. CCG has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any such information supplied by CCG and any information obtained by you by such permitted decompilation may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Requests for information should be directed to CCG.|
|L||Appliance. With respect to the Appliance, you agree (i) not to install any other software on the Appliance, and (ii) to run only the CCG provided Software on the Appliance. You further agree that you will not open, disassemble, modify, or replace parts of the Appliance.|
|M||Benchmarking. You may not publish or disclose to any third party the results of any testing or benchmarking without CCG’s prior written consent.|
5. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
|A||Protection. The structure, organization, and code of the Software are the valuable Confidential Information of CCG.|
|B||IP Rights. All right, title and interest in the IP Rights are the intellectual property of CCG and its licensors.|
|C||License, Not Sale. The right to use the Software and Appliance is a license and is not a sale of intellectual property and CCG and its licensors continue to own all right, title and interest, including all copyright, patents, patents pending, trademarks, and trade secrets, to the Software, Appliance, and related Documentation.|
|D||Website. This EULA does not grant you any rights to use the content provided by or through the CCG Websites, nor does it grant any rights to the CCG Websites, other than the right to use the CCG Websites according to the terms of the EULA or any Agreement. All title and intellectual property rights (including copyrights, patents, trademarks and trade secrets) in and to the CCG Websites (including related software, images, photographs, animations, video, audio, music, text, and content), are owned by CCG, its affiliates or licensors. All title and intellectual property rights in and to the information and content which may be accessed through use of the CCG Websites are the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement does not grant you any rights to use such content, nor does it grant any rights to the CCG Websites, other than the right to use the CCG Websites according to the terms of the Agreement.|
|E||Retention of Rights. CCG and its licensors retain all rights not explicitly granted to you.|
6. TERM AND TERMINATION.
|A||Termination. Notwithstanding anything to the contrary in this Section 6, without liability to CCG, your license to use the Software and Appliance will terminate:|
|i.||Evaluation Version. Automatically at the end of the Term of the Evaluation Version of the Software and Appliance.|
|ii.||Non-Renewal. Automatically at the end of the Term, if during the Term, you indicate that you will not renew the license.|
|iii.||Fail to Pay Licensing Fee. If you fail to pay the renewal licensing fees for the Software and Appliance, prior to the end of the Term. CCG will provide you with email notice that your license to use the Software and Appliance will terminate in thirty (30) days. If CCG does not receive payment of the necessary license fees within such thirty (30) day period, CCG may terminate your license to use the Software and Appliance at the end of such thirty (30) day period.|
|iv.||Permitted Number of Interfaces. In the event you exceed the Permitted Number of Interfaces, CCG will provide you with email notice ten (10) days prior to terminating your license to use the Software and Appliance. You may cure such breach by paying for any additional license fees to increase the Permitted Number of Interfaces, or discontinue the use of any interfaces that exceed the Permitted Number of Interfaces, and notify CCG that you have cured your breach. If you violate this paragraph more than two (2) times during any given Term, CCG may terminate your license to use the Software and Appliance with two (2) days’ notice to your email address.|
|v.||Breach of IP Rights. Immediately, if you breach any of the terms of Section 4 (“Restrictions”) or Section 5 (“Confidentiality and Intellectual Property Rights”).|
|vi.||Other Breach. Except as provided under Paragraphs iv and v, if you breach any of the terms of this EULA or any Agreement, CCG may terminate your license to use the Software and Appliance with thirty (30) days’ notice to you, unless you cure such defect within such thirty (30) day period, and you notify CCG within such thirty (30) day period that the breach has been cured.|
|B||Obligations of Return.|
|i.||Return of Appliances. Upon termination of this Agreement for any reason, you must cease all use of the Software and Appliances, and immediately return all Appliances to CCG at your expense. You will uninstall and delete any Software or copies of the Software on your computers, networks, or other devices, and provide written acknowledgment to CCG of its deletion.
|ii.||Delete Your Data. Prior to returning the Appliances to CCG, it is your obligation to delete all your data from the Appliances using secure erasure procedures. CCG shall not be responsible for your data on the returned Appliances.|
|iii.||Prepay Postage. Postage must be prepaid by you and the tracking number provided to CCG.|
|iv.||Failure to Return. In the event, you fail to return the Appliances within thirty (30) days of termination of this EULA or the Agreement (whichever is earlier), you will be obligated to pay CCG the cost for the Appliances. You covenant and agree to pay CCG the cost for the Appliances for your failure to return the Appliances.|
|C||Lockout Rights. In addition to the obligations to pay CCG under Section B.iv, if you fail to return the Appliances within thirty (30) days of termination of this EULA or the Agreement for any reason, CCG will have the right to electronically lock-out the Appliances and any copy of the Software installed on any device.|
7. CHANGES TO CYBERSECURITY MONITORING.
|A||Maintenance. CCG and its suppliers reserve the right, at any time, with or without prior notice to you, to restrict or suspend the functionality of the Software to perform maintenance activities and to maintain session control.|
|B||Service or Features. CCG reserves the right to change any of the features, content, or equipment authorized by CCG for use in connection with the cybersecurity monitoring functions or other functions of the Software, at any time, with or without notice to you.|
|C||Remote Updates. CCG reserves the right to periodically update, upgrade, change, remove, or add new Software remotely or otherwise and to make related changes to the settings and Software on the Appliance, or any equipment authorized by CCG for use in connection with the Software. You agree to permit such changes and access to your computer, the Appliances, and any such equipment authorized by CCG for use in connection with the Software.|
|D||Access. You agree to provide CCG electronic access via the Internet to the Appliance to activate the Appliance, provide Updates, and perform maintenance activities; where such access may not be available due to security restrictions, you agree to provide CCG personnel physical access to the Appliance to activate the Appliance, provide Updates, and perform maintenance activities at the then-current rates for Services.|
|A||Valid License. If CCG provides an update, upgrade, patch, addition, deletion, or other modification (individually, in combination, or together, the “Update”) to a previous version of the Software, you must possess a valid current license to such previous version in order to use such Update. All Updates are provided to you on a license exchange basis. You agree that by using an Update you voluntarily terminate your right to use any previous version of the Software. As an exception, you may continue to use a previous version of the Software on the Appliance after receiving the Update but only to assist in the transition to the Update, provided that: (a) the Update and the previous versions are installed on the same Appliance; (b) the previous versions or copies thereof are not transferred to another computer; and (c) you acknowledge that any obligation CCG may have to support the previous versions of the Software may be ended upon availability of the Update.|
|B||Deployment. CCG, from time to time during the subscription term and without your separate permission or consent, may deploy Updates of, or replacements for, any Software, and as a result of the deployment you may not be able to use the applicable Software or Appliance (or certain functions of the Software or Appliance) until the Update is fully installed or activated. Updates will be deemed a part of the Software for all purposes under this EULA. Updates may include both additions to, and removals of, any particular features or functionality offered by the Software or may replace it entirely, and CCG will determine the content, features and functionality of the Updates in its sole discretion. CCG is not required to offer you the option to decline or delay Updates, but in any event, you may need to download and permit installation of all available Updates to obtain maximum benefit from the Software. CCG may stop providing support for the Software until you have accepted and installed all Updates. CCG in its sole discretion will determine when and if Updates are appropriate and has no obligation to make any Updates available to you.|
9. NOTICE TO U.S. GOVERNMENT END-USERS.
The Software and Updates are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States. Canfield Consulting Group, LLC, 4104 Alfalfa Terrace, Olney, MD 20832.
10. COMPLIANCE WITH LICENSES.
You agree that upon request from CCG or CCG’s authorized representative, you will within thirty (30) days fully document and certify that use of any and all Software at the time of the request is in conformity with your valid licenses from CCG.
11. LEGAL AUTHORITY.
You represent and warrant that you have the legal authority to enter into this Agreement, that you are duly authorized and empowered to execute, deliver and perform the terms under this EULA and any Agreement and that such action does not conflict with or violate any provision of law, regulation, policy, contract, or other instrument to which you are a party or by which you are bound, and that this EULA and any Agreement constitutes a valid and binding obligation enforceable in accordance with its terms.
You acknowledge that you are responsible for all use of the Software and Appliances and for monitoring the data provided by the Appliance.
13. LIMITED WARRANTY; DISCLAIMERS AND EXCLUSIONS.
|A||Limited Warranty. CCG provides a limited warranty for a period of thirty (30) days from the date of delivery of the Appliance. CCG warrants that when properly installed and used under normal conditions, the Software, and where applicable, the Appliance, will perform substantially in accordance with the Documentation. If the Software, and where applicable, the Appliance, does not perform substantially in accordance with the Documentation, the entire and exclusive liability of CCG and its licensors, suppliers, resellers, distributors, and agents and your sole and exclusive remedy will be limited to replacement of the Software, and where applicable, the Appliance.|
|B||AS-IS. CCG DOES NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING ANY SOFTWARE, APPLIANCE, OR DOCUMENTATION. THE REMEDY IN THIS SECTION STATES THE SOLE AND EXCLUSIVE REMEDIES FOR CCG’S BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY UNDER SECTION 13.A, THE SOFTWARE, APPLIANCE, AND DOCUMENTATION ARE PROVIDED “AS IS” AND CCG MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISCLAIMS ANY AND ALL WARRANTIES IMPLIED BY STATUTE, COMMON LAW, JURISPRUDENCE, COURSE OF DEALING, COURSE OF TRADE, OR OTHER THEORIES OF LAW, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SUITABLE QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NONINFRINGEMENT OR NONINTERFERENCE OF THIRD PARTY RIGHTS OR TITLE, WITH REGARD TO THE SOFTWARE, APPLIANCES, AND DOCUMENTATION.|
|C||NO PROVISIONING. CCG DOES NOT WARRANT THAT SOFTWARE OR APPLIANCE CAN BE PROVISIONED TO YOUR LOCATION, OR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, EVEN IF CCG HAS ACCEPTED YOUR ORDER FOR THE APPLIANCE OR SOFTWARE.|
|D||INTERRUPTION. CCG DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR APPLIANCE, WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SOFTWARE OR APPLIANCE, WILL WORK PROPERLY ON ANY GIVEN DEVICE OR WITH ANY PARTICULAR CONFIGURATION OF THE APPLIANCE OR SOFTWARE, THAT THE SOFTWARE WILL BE COMPATIBLE WITH OR INTEGRATE WITH YOUR COMPUTER SYSTEMS.|
|E||VIRUSES. CCG DOES NOT WARRANT THAT ANY OF THE SOFTWARE, APPLIANCES, OR OTHER EQUIPMENT AUTHORIZED BY CCG FOR USE IN CONNECTION WITH CYBERSECURITY MONITORING WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, DISABLING CODE OR CONDITIONS, OR THE LIKE. CCG SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR EQUIPMENT (INCLUDING ANY OTHER EQUIPMENT AUTHORIZED BY CCG FOR USE IN CONNECTION WITH THE CYBERSECURITY MONITORING), RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE.|
|F||WORK. CCG DOES NOT WARRANT THAT ANY SERVICES PROVIDED WILL BE OF WORKMANLIKE QUALITY OR WITHOUT NEGLIGENCE.|
|G||ADVICE. NO ADVICE OR INFORMATION GIVEN BY CCG WILL CREATE A WARRANTY WITH RESPECT TO ADVICE PROVIDED.|
14. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CCG OR ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INDIVIDUALLY, IN COMBINATION, OR COLLECTIVELY, (THE “CCG PARTIES”) BE LIABLE FOR (i) ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, BUSINESS INTERRUPTION, LOSS OF INFORMATION, LOSS OF PROGRAMS, DAMAGE TO DATA, OR ANY OTHER PECUNIARY LOSS, ARISING OUT OF THE USE, PARTIAL USE, OR INABILITY TO USE THE SOFTWARE OR APPLIANCE, OR RELIANCE ON OR PERFOMANCE OF THE SOFTWARE OR APPLIANCES, OR THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE, OR STRICT LIABILITY, EVEN IF A CCG PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, (ii) ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY, OR (iii) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY. IN ANY CASE, CCG’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO A MAXIMUM OF UP TO THREE (3) MONTHS OF YOUR SOFTWARE LICENSE FEE (BUT EXCLUDING ALL OTHER FEES, INCLUDING, HARDWARE FEES, NONRECURRING CHARGES, REGULATORY FEES, SURCHARGES, SERVICE FEES AND TAXES), FOR YOUR THEN-CURRENT VALID LICENSE PERIOD,AND RETURN, AT YOUR EXPENSE, THE APPLIANCES, AND UNINSTALL ALL COPIES OF THE SOFTWARE. NO REFUND WILL BE DUE WHERE YOU HAVE NOT PAID A LICENSING FEE.
15. THIRD-PARTY BENEFICIARIES.
ALL LIMITATIONS AND DISCLAIMERS STATED IN SECTIONS 13 AND 14 ALSO APPLY TO CCG’S THIRD-PARTY LICENSORS, SUPPLIERS, RESELLERS, AND DISTRIBUTORS, AS THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT.
16. CONSUMER RIGHTS.
THE REMEDIES SET FORTH IN THIS EULA ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, CCG’S EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless the CCG Parties from and against all liabilities, costs and expenses, including reasonable attorneys’ and experts’ fees, related to or arising from your use of the Software, Appliances, or any other equipment used in connection with the cybersecurity monitoring (or the use of the Software, Appliances, or any other equipment by anyone else): (a) in violation of applicable laws, regulations, or this Agreement; or (b) in any manner that harms any person or results in the personal injury or death of any person or in damage to or loss of any tangible or intangible (including data) property.
18. THIRD PARTY SOFTWARE.
19. GOVERNING LAW.
This EULA will be governed by and construed in accordance with the laws of the state of Maryland without regard to its conflict of laws principles, except that (i) if you are a U.S. Government entity, this agreement is governed by the laws of the United States, and (ii) if you are a state or local government entity in the United States, this EULA and any Agreement is governed by the laws of that state. Any action to enforce this EULA and any Agreement must be brought in the State of Maryland. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to a violation of intellectual property rights. This EULA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
You agree that any unauthorized use or disclosure of the Confidential Information, or any threat thereof, would likely cause CCG or its licensors irreparable harm that could not be fully remedied by monetary damages. Thus, you agree that CCG or its licensors will have the right, in addition to any other remedy available to it, to injunctive or other equitable relief from a court of competent jurisdiction, without proof of actual damages, and without payment of any bond, as may be necessary to prevent any unauthorized use or disclosure of the Confidential Information.
CCG reserves the right to periodically update, change, or revise its EULA. In addition, Updates may be licensed to you by CCG with additional or different terms. This EULA and any Agreement is the entire agreement between CCG and you relating to the Software and Appliance, and supersedes any prior representations, discussions, undertakings, communications, or advertising relating to the Software and Appliance. If you have been provided a later version of this EULA with any Agreement, then that version of the EULA will control with respect to any conflict between the EULAs. The latest version of the EULA is posted on the CCG Website, which shall control in the event of a dispute.
If any part of this EULA is found void and unenforceable, it will not affect the validity of the balance of this EULA, which shall remain valid and enforceable according to its terms.
The headings in this EULA are for convenience and will not be used to interpret this EULA or any Agreement.
24. GENDER AND NUMBER.
Except where otherwise indicated by context, any masculine term used in this EULA also includes the feminine, the plural includes the singular, and the singular includes the plural.
All notices required to be sent shall be sent to the addresses, facsimile numbers, or email addresses provided to CCG when you activated the Software under this EULA or as provided under any Agreement, and shall be deemed given (i) on the date of mailing, if sent by certified mail or by a nationally recognized overnight courier (e.g. Federal Express, UPS, etc.), or (ii) on the date sent, if sent by facsimile transmission or email provided confirmation of receipt is received. In the event notice is sent under (i), postage or delivery costs shall be prepaid. The addresses, facsimile numbers, or email addresses may be changed by the each of the parties from time to time by providing notice to the then current address, facsimile number, or email address of the party to receive notice.
No failure, delay or omission by a party in exercising any right, power or remedy provided by law or equity under this EULA shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.No single or partial exercise of any right, power or remedy provided by law or equity under this EULA shall prevent any future exercise of it or the exercise of any other right, power or remedy. A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
Any terms of this EULA which by their nature extend beyond expiration or termination of this Agreement shall remain in effect until fulfilled and shall bind the parties and their legal representatives, successors, heirs and assigns.
This EULA and any Agreement were negotiated at arms-length between the parties, and nothing in this Agreement is to be construed against the party that drafted the EULA or Agreement.
In the event of a dispute between the parties, the parties agree to mediate their dispute with a neutral mediator prior to proceeding with any legal action.