Section 1. Scope and Applicability

This End User License Agreement (“EULA”) between You and COGNITEC covers Your use of the Software and Cloud Services (“COGNITEC Technology”). Definitions of capitalized terms are in Section 2 (Definitions).

You agree to be bound by the terms of this EULA through (a) Your download, installation, or use of the COGNITEC Technology; or (b) Your express agreement to this EULA.

If You do not have authority to enter into this EULA or if You do not agree to the terms and conditions of this EULA, do not install or use the COGNITEC Technology.

Section 2. Definitions.

The terms used in this EULA beginning with a capital letter shall have the meanings as defined below or as defined elsewhere in the text marked with the term put in quotation marks:

“Access” means to use or benefit from using the functionality of the Cognitec Technology in accordance with the Documentation.

“Approved Source” means COGNITEC or a COGNITEC Partner.

“Authorized Third Parties” means Your Users, Your third-party service providers, and each of their respective Users permitted to access and use the COGNITEC Technology on Your behalf as part of Your Entitlement. “Cloud Service” means the COGNITEC hosted software-as-a-service offering or other COGNITEC cloud-enabled feature described in the applicable product specific terms (Cloud Service includes applicable Documentation and may also include Software).

“COGNITEC” means either Cognitec Systems Pty Ltd. with its current place of business at L20, Tower 2, Darling Park, 201 Sussex Street, Sydney NSW 2000 Australia in case You have acquired the license from this company or Cognitec Systems Corporation, a Delaware Corporation with its registered place of business in 200 Ledgewood Place, Suite 100| Rockland | MA 02370, USA or with its further place of business at 200 Ledgewood Place, Suite 100, Rockland, MA 02370, USA in case You have acquired the license from this company or COGNITEC Systems GmbH, Germany, with its current place of business at Grossenhainer Str.101, D-01127 Dresden, Germany, a company organized under the laws of the Federal Republic of Germany.

“COGNITEC Content” means any (a) content or data provided by COGNITEC to You as part of Your use of the COGNITEC Technology and (b) content or data that the COGNITEC Technology generates or derives in connection with Your use; COGNITEC Content includes geographic and domain information, rules, signatures, threat intelligence and data feeds and COGNITEC’s compilation of suspicious URLs.

“COGNITEC Partner” means a COGNITEC authorized reseller, distributor or systems integrator authorized by COGNITEC to sell COGNITEC Technology.

“Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EULA, which is (a) conspicuously marked as confidential or, if verbally disclosed, is summarized in writing to the Recipient within 14 days and marked as confidential; or (b) is information which by its nature should reasonably be considered confidential whether disclosed in writing or verbally.

“Delivery Date” means the date agreed in Your Entitlement, or where no date is agreed: (a) where Usage Rights in Software or Cloud Services are granted separately: (i) for Software, the earlier of the date Software is made available for download or installation, or the date that COGNITEC ships the tangible media containing the Software, and (ii) for Cloud Services, the date on which the Cloud Service is made available for Your use; or (b) where Usage Rights in Software and Cloud Services are granted together, the earlier of the date Software is made available for download, or the date on which the Cloud Service is made available for Your use.

“Demonstration Software” means a version of the Software licensed by COGNITEC for use in a technical environment designed to demonstrate the features of the Software but not to be used in production.

“Entitlement” means the specific metrics, duration, and quantity of COGNITEC Technology according to the license agreement under which You acquired the Usage Rights through individual acquisition.

“Evaluation Software” means a version of the Software licensed by COGNITEC for use in a technical environment designed to conduct an evaluation of the Software and testing but not to be used in production.

“FaceVACS-Component” means the Integrators’ Kit that is an integral component of an item of the Software to be used solely by an Integrator or end-user for the purpose of creating Integrator applications for themselves or third parties redistributable solely in combination with Integrated Products.  

“Install” means to place a copy of the Software onto a hard disk or other storage medium through any means (including but not limited to use of an installation utility application accompanying the Software) for the purpose of permitting Access to the Software.

“Integrator” means a COGNITEC Partner for developing and distributing Integrated Products.

“Integrated Product” means Software combined with hardware devices (e.g. computers, cameras, door terminals) and/or Software of COGNITEC, or software of a third party, forming a resulting combined system that can perform functions that its independent components could not perform separately.

“Internal Computer Network” shall mean Your proprietary computer network resource accessible only by employees and/or Authorized Third Parties and solely controlled by You; Internal Computer Network specifically excludes the Internet or any other network community that is open to the public, including without limitation membership or subscription driven groups, associations or similar organizations; connection by secure links such as VPN or dial up to Your Internal Computer Network for the purpose of allowing Authorized Third Parties to Access the Software is considered use over an Internal Computer Network.

“Permitted Number” means one (1) unless otherwise indicated under a valid license granted by COGNITEC. “Sample Code” means software source code or executable code, in either way labelled as ‘sample code’. “Software” means the COGNITEC computer programs including: (a) all of the contents of the files, disk(s), CD-ROM(s) or other media with which this EULA is provided, the items of the software supplied to You, including but not limited to (i) FaceVACS software , which includes FaceVACS-PortraitAcquisition, FaceVACS-DBScanID, FaceVACS-DBScanLE, FaceVACS-VideoScan, FaceVACS-Entry and FaceVACS-Technology (SDK), (ii) COGNITEC or third party computer information or software (including firmware, Evaluation Software and Demonstration Software), (iii) digital images, stock photographs, clip art, sounds or other artistic works (“Stock Files”), (iv) an Application Programming Interface “API”, (v) SQL database schemes and guidance how to modify database schemes, and (vi) related explanatory written materials or files and other associated media, printed materials, and online or electronic documentation (“Documentation”); and b) fixes, modified versions, updates, additions, and copies of the Software, if any, licensed to You by COGNITEC (collectively, “Updates”).

“Usage Term” means the period commencing on the Delivery Date and continuing until expiration or termination of the Entitlement, during which period You have the right to use the applicable COGNITEC Technology.

“User” means the individuals (including contractors or employees) permitted to access and use the COGNITEC Technology on Your behalf as part of Your Entitlement.

“You” means the individual or legal entity using the COGNITEC Technology.

Section 3. Using COGNITEC Technology.

3.1 License and Right to Use. Provided You have acquired a valid license from COGNITEC and as long as You comply with the terms of this EULA, COGNITEC grants You (a) a license to use the Software as provided in this Section 3 and, in addition and depending on which type of Software license You have acquired, Section 4 (Full Use License), Section 5 (Evaluation Software) or Section 6 (Demonstration Software); and (b) a right to use Cloud Services, both for Your direct benefit during the Usage Term and as set out in Your Entitlement (collectively the “Usage Rights”.

3.2 Use by Third Parties. You may permit Authorized Third Parties to exercise the Usage Rights on Your behalf, provided that You are responsible for (a) ensuring that such Authorized Third Parties comply with this EULA and (b) any breach of this EULA by such Authorized Third Parties.

3.3 Upgrades or Additional Copies of Software. You may only use Upgrades or additional copies of the Software beyond Your license Entitlement if You have (a) acquired such rights under a support or maintenance agreement covering the applicable Software; or (b) You have purchased the right to use Upgrades or additional copies separately.

3.4 Subscription Renewal. Usage Rights in COGNITEC Technology acquired on a subscription basis will automatically renew for the renewal period indicated on the order You or Your COGNITEC Partner placed with COGNITEC (“Renewal Term”) unless: (a) You notify Your Approved Source in writing at least 90 days before the end of Your then-current Usage Term of Your intention not to renew; or (b) You or Your COGNITEC Partner elect not to auto-renew at the time of the initial order placed with COGNITEC. Your Approved Source will notify You reasonably in advance of any Renewal Term if there are fee changes. The new fees will apply for the upcoming Renewal Term unless You or Your COGNITEC Partner promptly notify COGNITEC in writing, before the renewal date, that You do not accept the fee changes. In that case, Your subscription will terminate at the end of the current Usage Term.

3.5 Protecting Account Access. You will keep all account information up to date, use reasonable means to protect Your account information, passwords and other login credentials, and promptly notify COGNITEC of any known or suspected unauthorized use of or access to Your account.

3.6 Use in Compliance with the Law. As between You and COGNITEC, You assume all risk and are solely responsible for any and all liability resulting from Access to the COGNITEC Technology in a way that violates (or that produces content that violates) any law or the rights of others including, without limitation, laws concerning copyright infringement. To the extent Your use of the COGNITEC Technology requires it, You are responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of their data through Your use of the COGNITEC Technology. If You use the COGNITEC Technology in a location with local laws requiring a designated entity to be responsible for collection of personal data about individual end users and transfer of data outside of that jurisdiction, You acknowledge that You are the entity responsible for complying with such laws.

3.7 Embedded Software: You acknowledge that the COGNITEC Technology licensed hereunder contains third party components that are licensed pursuant to its own terms and conditions ("Embedded Software"). A copy of the licenses associated with such Embedded Software can also be obtained on written request from COGNITEC.

3.8 Open-Source-Components: Open-source software not owned by COGNITEC is subject to separate license terms as set out in the license terms set out in your Entitlement. The applicable open-source software licenses will not materially or adversely affect Your ability to exercise use rights in applicable Software.

3.9 Backup Copy. You may make one (1) additional copy of each validly licensed copy of the Software in machine readable form for backup purposes only, provided that You include any and all COGNITEC copyright notices or other designations that appear or may appear in or on the Software, without alteration or removal of any such copyright or other notice on the original copy of the Software (“Backup-Copy”). You may Install and Access Backup Copies of Software only in the event that Your primary copy has failed. With respect to each copy of Software, You may Install such Backup Copy on any of Your computer(s) solely for backup purposes in the event of computer failures. You may Access the backup copy of Software for production purposes only in the event that Your primary copy has failed or is under maintenance and is not in production use. At no time may the total number of the computer(s) on which You Access both the primary copy and Backup Copy of Software for production purposes or exceed the Permitted Number. Except as otherwise described in this Section 3.1, all terms and conditions of this EULA shall apply to Your Installation and Access of any Backup Copy of the Software. You may not transfer the rights to a Backup Copy unless You transfer all rights in the Software as provided in the Transfer Section 8 of this EULA.

3.9 COGNITEC Technology Generally. Unless expressly agreed by COGNITEC or expressly authorized by any applicable law, You may not (a) transfer, sell, sublicense, monetize or make the functionality of any COGNITEC Technology available to any third party; (b) use the Software on second hand or refurbished COGNITEC equipment not authorized by COGNITEC, or use Software that is licensed for a specific device on a different device (except as permitted under COGNITEC’s Software License Definitions); (c) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks; (d) reverse engineer, decompile, decrypt, disassemble, modify, or make derivative works of the COGNITEC Technology; or (e) use COGNITEC Content other than as part of Your permitted use of the COGNITEC Technology. You will not intentionally (a) interfere with other customers’ access to, or use of, the Cloud Service, or with its security; (b) facilitate the attack or disruption of the Cloud Service, including a denial of service attack, unauthorized access, penetration testing, crawling, or distribution of malware (including viruses, trojan horses, worms, time bombs, spyware, adware, and cancelbots); (c) cause an unusual spike or increase in Your use of the Cloud Service that negatively impacts the Cloud Service’s operation; or (d) submit any information that is not contemplated in the applicable Documentation.

Section 4. Additional Use Conditions for Full Use License

4.1 General. This Section 4 applies if You have obtained a valid license to an item of the Software other than as Evaluation Software or Demonstration Software.

4.2 Software Installation. COGNITEC grants to You a non-exclusive, non-transferable license to Install the Software on one or more Computer(s) on Your Internal Computer Network to the extent and for the purposes described in Your Entitlement, provided that: (a) only the licensed functionality as set forth in the Entitlement is used or facilitated; and (b) none of the licensed parameters limiting the licensed functionality (like maximum number of enrolees, number of cameras, number of seats) do not exceed the Permitted Number. Except as expressly permitted herein, You may not Install all or any portion of COGNITEC Software onto any Computer if doing so would cause You to exceed the Permitted Number of licensed parameters.

4.3 Internal Computer Network Use. You may permit Authorized Third Parties to Access COGNITEC Software through Your Internal Computer Network and use the COGNITEC Software as defined in Your Entitlement. In addition, but only so far as Your Entitlement allows, You may configure the Software so as to automate (such as through the use of scripts and/or batch processing) software features (such as image resizing) provided that such automated process is initiated by Authorized Third Parties from within Your Internal Computer Network. You may Access COGNITEC Software to deliver content to any Computer connected to Your Internal Computer Network so far as Your Entitlement allows.

4.4 Other Network Use. Except as otherwise provided in Section 4.3 You may not (a) permit Access to COGNITEC Software by any users other than Authorized Third Parties; or (b) Access COGNITEC Software (or permit others to do so) to deliver content either directly or through commands, data or instructions from or to a Computer not part of Your Internal Computer Network unless this is allowed by Your Entitlement. So far as Your Entitlement allows You may provide Access to COGNITEC Software or to specific features of COGNITEC Software to users outside Your Internal Computer Network for the sole purpose of initiating a process (including an automated process) that results in COGNITEC Software delivering content (including content that has been modified based on user-specified preferences or information in accordance with this EULA) to a Computer outside Your Internal Computer Network.

4.5 Integrated Products: This subsection 4.5 only applies if You have obtained a valid license to Software as part of a device (e.g. camera, data-terminal) that delivers content to a computer or an Internal Computer Network. You are granted the nonexclusive right to use one (1) copy of this Software with each computer or Internal Computer Network connected to the device with which the Software was acquired.

4.6 Integrator’s Use Rights. As Integrator You may use the Software only on the basis of a valid Integrator license, install the FaceVACS Components on one or more computer(s) that are part of Your Internal Computer Network, Access the API Information subject to Section 4.7 below, and use and modify the Sample Code and merge all or any portion of the Sample Code into Your own code solely for the purpose of facilitating Your Access to the Software to build applications that work in conjunction with the Software in accordance with the Entitlement and with this EULA. You may reproduce and redistribute any such Sample Code along with any modification (that means enhancements to the functionality of the Sample Code) You make thereto and the other files that may be listed and identified in the Documentation expressly as “redistributable files” provided that You agree: (a) to distribute such code only in object code form; (b) to merge the redistributable code into Your own code only in combination with the Integrated Products; (c) to redistribute such code to third parties only on the basis of purchased end-user-licenses according to Your Entitlement; (d) include COGNITEC’S copyright notices on Your programs that include portions of Sample Code or the other redistributable code, except for those programs in which You include a copyright notice reflecting Your own copyright ownership in such programs; (e) to indemnify, hold harmless and defend COGNITEC and its affiliates from and against any claims or lawsuits, including attorney’s fees, that arise or result from the use or distribution of the Integrated Products; and (f) to otherwise comply with the terms of this EULA.

Section 5. Additional Use Conditions for Evaluation Software.

5.1 General: This Section 4 applies if You have obtained a valid license to Evaluation Software. COGNITEC grants to You a non-exclusive license to Install the Software on one or more Computer(s) on Your Internal Computer Network to the extent and for the purposes described in the specification of Your license to COGNITEC Software Evaluation Agreement. Your license to the Evaluation Software is limited to use strictly for Your own internal evaluation purposes and not for production purposes and is further limited to a period of not more than sixty (60) days from the date You acquire the Evaluation Software unless otherwise agreed in writing. You may Install the Evaluation Software on a total number of Computers not to exceed the Permitted Number and permit Authorized Users to Access the Evaluation Software through Your Internal Computer Network to deliver content within Your Internal Computer Network. No other network use is permitted for Evaluation Software.

5.2 Order of Precedence. To the extent that any provision in this Section is in conflict with any other term or condition in this EULA, this Section shall supersede such other term(s) and condition(s) with respect to the Evaluation Software, but only to the extent necessary to resolve the conflict

Section 6. Additional Use Conditions for Demonstration Software.

6.1 General. This Section 6 applies if You have obtained a valid license to Demonstration Software. In addition to the other terms contained herein, Your license to the Demonstration Software is limited to use in Your technical environment strictly for demonstration purposes for customers and not for production purposes. You may Install the Demonstration Software on a total number of Computers not to exceed the Permitted Number and permit Authorized Users to Access the Software through Your Internal Computer Network to deliver content within Your Internal Computer Network. No other network use is permitted for Demonstration Software. If the item of the Software You have received with this license is Demonstration Software, then Your rights under this EULA will terminate immediately upon the earlier of (a) the expiration of agreed demonstration period, or (b) the expiration of Your appointment as distributor.

6.2 Right to Terminate and Order of Precedence. COGNITEC reserves the right to terminate Your license to Demonstration Software at any time in its sole discretion. You agree to return or destroy Your copy of the Demonstration Software upon termination of this EULA for any reason. To the extent that any provision in this Section is in conflict with any other term or condition in this EULA, this Section shall supersede such other term(s) and condition(s) with respect to the Demonstration Software, but only to the extent necessary to resolve the conflict.

Section 7. Ownership.

Except where agreed in writing, nothing in this EULA transfers ownership in, or grants any license to, any intellectual property rights. You retain any ownership of Your content and COGNITEC retains ownership of the COGNITEC Technology and COGNITEC Content. COGNITEC may use any feedback You provide in connection with Your use of the COGNITEC Technology as part of its business operations.

Section 8. Transfer.

You may not rent, lease, sell, sublicense, un-bundle and/or repackage for distribution or resale, or authorize all or any portion of the Software to be copied onto another user’s Computer or Installed or Accessed on another user’s Computer except as may be expressly permitted herein or in a valid license agreement. You may not transfer or assign this EULA or any license to use the Software without the prior written consent of COGNITEC, which shall not be unreasonably withheld. The parties agree that COGNITEC is hereby entitled to assign and/or transfer all or part of its rights and obligations under this EULA to any third party. Notwithstanding the foregoing, any successor, representative or assignee which shall succeed by purchase, merger, or consolidation to the properties, substantially in Your entirety as a legal entity shall be entitled to the rights and shall be subject to the obligations of its predecessor in interest under this EULA, provided that such entity executes a prior acknowledgement confirming such entity’s acceptance and agreement to be bound by and comply with the terms of this EULA and COGNITEC receives such written acknowledgement prior to the transfer. Notwithstanding anything to the contrary in this EULA You may not transfer Evaluation Software and Demonstration Software.

Section 9. Confidentiality.

Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any third party, except for its employees, affiliates, and contractors who have a need to know (“Permitted Recipients”). Recipient: (a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this EULA, and (b) is liable for any breach of this Section by its Permitted Recipients. Such nondisclosure obligations will not apply to information that: (i) is known by Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of Recipient; or (iii) is independently developed by Recipient. Recipient may disclose Discloser’s Confidential Information if required under a regulation, law or court order provided that Recipient provides prior notice to Discloser (to the extent legally permissible) and reasonably cooperates, at Discloser’s expense, regarding protective actions pursued by Discloser. Upon the reasonable request of Discloser, Recipient will either return, delete or destroy all Confidential Information of Discloser and certify the same.

Section 10. Warranties and Disclaimers of Warranties.

10.1. Performance. COGNITEC warrants that: (a) for a period of 90 days from the Delivery Date or longer as stated in Entitlement the Software substantially complies with the Documentation; and (b) during the Usage Term, it provides the Cloud Services with commercially reasonable skill and care in accordance with the Documentation and agreed product terms.

10.2 No Warranty for Evaluation and Demonstration Software. You acknowledge that the Evaluation Software and the Demonstration Software is being provided „AS IS“ and COGNITEC expressly disclaims all warranties, express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement to the maximum extent permitted under applicable laws, COGNITEC does not warrant that the information contained in the downloaded Software will meet licensee’s requirements, or that the operation and/or delivery of the downloaded Software will be uninterrupted or error-free, or that defects in the downloaded software will be corrected. Furthermore, COGNITEC does not warrant or make any representations regarding the use or the results of the use of the downloaded software in terms of correctness, accuracy, reliability, or otherwise. No oral or written information or advice given by COGNITEC or its authorized representative shall create a warranty or in any way increases the scope of this warranty. The forgoing shall not apply if and insofar as the parties have agreed to deviant warranty conditions in writing. The Software may automatically place visible signs on content processed by such Software and it could continue to do so until such time that you purchase a license to a full version of the Software. You acknowledge that the absence of such signs does not restrict COGNITEC’s rights in the software and that You may not derive further rights from this absence.

10.3. Warranty under German Law. In case the laws of Germany apply, then Sections 10.1 and 10.2 do not apply, instead, COGNITEC warrants that the Software will perform substantially in accordance with the Documentation for a period of twelve (12) months from the Delivery Date. A non-substantial variation of performance from the Documentation does not establish a warranty right.

10.4. Warranty under Australian Consumer Law. In case the laws of Australia apply, then Sections 10.1 and 10.2 do not apply to exclude or limit liability under any consumer guarantee that cannot be excluded under the Australian Consumer Law (Schedule 2 to the Competition and Consumer Act 2010 (Cth)). To the full extent permitted by the Australian Consumer Law, the liability of COGNITEC in respect of any breach of consumer guarantees will be limited to correction of any defect or replacement of the defective item or paying the cost of doing so.  If COGNITEC is not permitted such limit of liability, You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. These rights may be lawfully limited in respect of goods or services not ordinarily acquired for personal, domestic or household use or consumption. If the Australian Consumer Law applies to Your license, to request a replacement or a refund, please send Your written request to Cognitec Systems Pty Ltd. L20, Tower 2, Darling Park, 201 Sussex Street, Sydney NSW 2000 Australia. For further details regarding these guarantees and any limitation applied to them, please contact Cognitec Systems Pty Ltd. (contact details at www.cognitec.com).

10.5 Disclaimer. Except as expressly stated in this Section, to the extent allowed by applicable law, COGNITEC expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition or other implied term as to merchantability, fitness for a particular purpose or non-infringement, or that the COGNITEC Technology will be secure, uninterrupted or error free. If You are a consumer, You may have legal rights in Your country of residence that prohibit the limitations set out in this Sub-Section from applying to You, and, where prohibited, they will not apply.

10.5 Exclusion. Sections 10.1, 10.3 and 1.0.4 do not apply if the COGNITEC Technology or the equipment on which it is authorized for use: (a) has been altered, except by COGNITEC or its authorized representative; (b) has been subjected to abnormal physical conditions, accident or negligence, or installation or use inconsistent with this EULA or COGNITEC’s instructions; (c) is acquired on a no charge, beta or evaluation basis; (d) is not a COGNITEC-branded product or service; or (e) has not been provided by an Approved Source. Upon Your prompt written notification to the Approved Source during the warranty period of COGNITEC’s breach of this Section 10.1, Your sole and exclusive remedy (unless otherwise required by applicable law) is, at COGNITEC’s option, either (i) repair or replacement of the applicable COGNITEC Technology or (ii) a refund of the (a) license fees paid or due for the non-conforming Software, or (b) the fees paid for the period in which the Cloud Service did not comply, excluding any amounts paid under a service level agreement/objective, if applicable. Where COGNITEC provides a refund of license fees paid for Software, You must return or destroy all copies of the applicable Software.

Section 11. LIMITATION OF LIABILITY.

11.1 LIMITATION OF LIABILITY. IN NO EVENT WILL COGNITEC, ITS AFFILIATES OR AGENTS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A COGNITEC REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. COGNITEC’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES OR AGENTS UNDER OR IN CONNECTION WITH THIS EULA SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. COGNITEC is acting on behalf of its AGENTS for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this EULA, but in no other respects and for no other purpose.

11.2 Limitation of Liability under German Law. In case the laws of Germany apply, then Section 11.1 does not apply, instead, COGNITEC, its affiliates or its agents shall be liable without restriction for i) damage caused intentionally or through gross negligence, ii) for claims according to the German or other European Product Liability Act and iii) in the case of violating life, body or health. In the event of simple negligence, the following applies: By excluding further liability COGNITEC, its affiliates or its agents shall only be liable insofar as it has breached an essential contractual obligation (cardinal contractual obligation). This liability shall be restricted to the contractually typical and foreseeable damage in the case of material and pecuniary damages. These aforementioned limitations apply irrespective of their legal basis, in particular with regard to any pre-contractual or auxiliary contractual claims. The limitations shall not apply, however, to any damage which is caused due to the breach of an express warranty to the extent that such express warranty was intended to protect the user against the specific damage incurred. COGNITEC is acting on behalf of its AGENTS for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this EULA, but in no other respects and for no other purpose.

Section 12. Indemnification

12.1. Claims. COGNITEC will defend any third-party claim against You that Your valid use of COGNITEC Technology under Your Entitlement infringes a third party's patent, copyright or registered trademark (the “IP Claim”). COGNITEC will indemnify You against the final judgment entered by a court of competent jurisdiction or any settlements arising out of an IP Claim, provided that You: (a) promptly notify COGNITEC in writing of the IP Claim; (b) fully cooperate with COGNITEC in the defence of the IP Claim; and (c) grant COGNITEC the right to exclusively control the defence and settlement of the IP Claim, and any subsequent appeal. COGNITEC will have no obligation to reimburse You for attorney fees and costs incurred prior to COGNITEC 's receipt of notification of the IP Claim. You, at Your own expense, may retain Your own legal representation.

12.2. Additional Remedies. If an IP Claim is made and prevents Your exercise of the Usage Rights, COGNITEC will either procure for You the right to continue using the COGNITEC Technology or replace or modify the COGNITEC Technology with functionality that is at least equivalent. Only if COGNITEC determines that these alternatives are not reasonably available, COGNITEC may terminate Your Usage Rights granted under this EULA upon written notice to You and will refund You a prorated portion of the fee You paid for the COGNITEC Technology for the remainder of the unexpired Usage Term.

12.3. Exclusions. COGNITEC has no obligation with respect to any IP Claim based on: (a) compliance with any designs, specifications, or requirements You provide or a third party provides on Your behalf; (b) Your modification of any COGNITEC Technology or modification by a third party; (c) the amount or duration of use made of the COGNITEC Technology, revenue You earned, or services You offered; (d) combination, operation, or use of COGNITEC Technology with non- COGNITEC products, software or business processes; (e) Your failure to modify or replace COGNITEC Technology as required by COGNITEC; or (f) any COGNITEC Technology provided on a no charge, beta or evaluation basis.

12.4. Entire Obligation. This Section 12 states COGNITEC’s entire obligation and Your exclusive remedy regarding any IP Claims against You.

Section 13. Termination and Suspension

13.1.  Suspension. COGNITEC may immediately suspend Your Usage Rights if You breach Sections 3.1 (License and Right to Use), 3.9 (COGNITEC Technology Generally) or 14.2 (Export).

13.2. Termination. If a party materially breaches this EULA and does not cure that breach within 30 days after receipt of written notice of the breach, the non-breaching party may terminate this EULA for cause. Any statutory right to extraordinary termination without notice remains unaffected. COGNITEC may terminate this EULA for good cause without notice if You breach Sections 3.1 (License and Right to Use), 3.9 (COGNITEC Technology Generally) or 14.2 (Export). Upon termination of the EULA, You must stop using the COGNITEC Technology and destroy any copies of Software and Confidential Information within Your control. If this EULA is terminated due to COGNITEC’s material breach, COGNITEC will refund You or Your Approved Source, the prorated portion of fees You have prepaid for the Usage Rights beyond the date of termination. Upon COGNITEC’s termination of this EULA for Your material breach, You will pay COGNITEC or the Approved Source any unpaid fees through to the end of the then-current Usage Term. If You continue to use or access any COGNITEC Technology after termination, COGNITEC or the Approved Source may invoice You, and You agree to pay, for such continued use.

Section 14. Miscellaneous.

13.1 Governing Law and Place of Jurisdiction. This EULA, each transaction entered into hereunder, and all matters arising from or related to this EULA (including its validity and interpretation), will be governed and enforced by the substantive laws in force in: (a) the State of New South Wales, Australia, if a license to the COGNITEC Technology is acquired by You from Cognitec Systems Pty Ltd. Australia; or (b) the State of Massachusetts, USA, if a license to the COGNITEC Technology is acquired by You from Cognitec Systems Corporation, USA; or (c) The Federal Republic of Germany, if a license to the COGNITEC Technology is purchased by You from COGNITEC Systems GmbH, Germany. The respective competent courts of Sydney when State of New South Wales laws applies, of Massachusetts when Massachusetts laws applies, and the competent courts of Germany at COGNITEC’S registered seat, when the laws of Germany applies, shall each have exclusive jurisdiction over all disputes relating to this EULA. This EULA will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

14.2 Export. In general, this Software is subject to national or trans-national export restriction regulations, including but not limited to export restriction regulations for goods that can be used for permitted purposes and for prohibited purposes (i.e. dual use goods). You agree that the Software will not be shipped, transferred or exported into any country to be used or used in any manner or for purposes prohibited by the German and European Export Trade Restrictions and 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, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Myanmar, Zimbabwe, and North Korea) and that You are not otherwise prohibited under the Export Laws from receiving the Software. All rights to Install, Access and use the Software are granted on condition that such rights are forfeited if You fail to comply with the terms of this EULA.

14.3 Notice to U.S. Government End Users. To the extent any licenses granted herein are deemed to constitute the acquisition of software on behalf of any agency or unit of the United States Government, it is agreed and understood (i) that the Software is classified as "Commercial Computer Software" and the Government is acquiring only "restricted rights" in the software product, as defined in clause 48 C.F.R. 227-7205-5(c); or (ii) the Government's rights in the Software shall be as defined in clause 48 C.F.R.  52.227-19 of the FAR.

14.4 Third-Party Beneficiary. You acknowledge and agree that COGNITEC’S licensors and/or COGNITEC if You obtained the Software from

are third party beneficiaries of this EULA, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or COGNITEC.

14.5 Severability. If any part of this EULA is found void and unenforceable, it will not affect the validity of the balance of the EULA, which shall remain valid and enforceable according to its terms. This EULA shall not prejudice the statutory rights of any party dealing as a consumer. Updates may be licensed to You by COGNITEC with additional or different terms.

14.6 Order of Precedence. In case of a conflict between this EULA and Your valid license the valid license

agreement shall prevail.

14.7 Force Majeure. Except for payment obligations, neither party will be responsible for failure to perform its obligations due to an event or circumstances beyond its reasonable control.

14.8 No Waiver. Failure by either party to enforce any right under this EULA will not waive that right.

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If You have any questions regarding this EULA or if You wish to request any information from COGNITEC please use the address and contact information included with this COGNITEC Technology to contact COGNITEC.

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