These End User License Terms (these “License Terms”) are between you (both the individual installing or using the Software and any other person or entity on behalf of which such individual is acting) (“Customer”) and Cobalt Iron, Inc. a company incorporated under the laws of Delaware, registered at 1421 Research Blvd, Suite 2C, Lawrence, KS 66049 (“Cobalt Iron”).

THE SOFTWARE IS LICENSED FOR THE TERM ONLY ON THE CONDITION THAT THE CUSTOMER ACCEPTS TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT.

  1. Definitions
    • Confidential Information” shall mean the Software, its source code, the content of the documentation, financial, business, technical, copyright, and confidential or proprietary information relating to the Software or to Cobalt Iron’s business which is disclosed by Cobalt Iron or its affiliates to Customer;
    • Documentation” shall mean all of Cobalt Iron’s user manuals, operating instructions, installation guides, and other documents relating to the Software;
    • Error” shall mean any material, verifiable, and reproducible failure or malfunction of the Software, provided that a failure or malfunction in the Software resulting from Misuse or otherwise not attributable to Cobalt Iron or the Software, shall not be considered an Error;
    • Force Majeure” shall mean any event beyond the reasonable control of a party that causes a delay in performing or failure to perform such party’s obligations, including natural disasters, riots, war, emergencies, actions or omissions of the government, fire, faults or errors in a third party’s hardware or software, unavailability of third party communications, as well as any action or omission of a person or entity beyond the reasonable control of the affected party;
    • License” shall mean the limited term license granted to Customer by Cobalt Iron to use the Software and the Documentation, as further described in clause 2;
    • License Fees” shall mean the fees due to Cobalt Iron by Customer for the License;
    • Misuse” shall mean: (i) any use of the Software otherwise than in accordance with these License Terms, (ii) modification or change of the Software not performed by or on behalf of Cobalt Iron; (iii) the use of non-current releases of the Software; (iv) combining or merging the Software with any software or hardware which is not supplied by or on behalf of Cobalt Iron or which is not authorized in writing by Cobalt Iron to be so combined or merged by Customer;
    • Software” shall mean the software components identified on the Order Form and licensed by Cobalt Iron to Customer under these License Terms, including all new releases, provided by Cobalt Iron to Customer to the extent Customer is entitled to such releases;
    • Warranty Period” has the meaning set out in clause 5.1 of these License Terms; and
    • Workaround” means a suggested set of actions to restore the functionality of the Software.
  2. License and Restrictions
    • Subject to the terms and conditions of this agreement and payment in full of the License Fees, Cobalt Iron hereby grants to Customer, during the term of the License, a limited, personal, non-transferable, non-sub-licensable, revocable, non-exclusive license to: (a) use, install and operate a single copy of the Software, in executable code format only, in accordance with the usage limitations and restrictions of these License Terms, and (b) make a reasonable number of copies of the Documentation for Customer’s internal use and use the Documentation solely in support of Customer’s internal authorized use of the Software.
    • The License does not include the right to sublicense or transfer the Customer’s user rights to any third party by means of sale, lease, loan, rent, license, or otherwise.
    • Except for the express License granted to Customer, all right, title, and interest (including all patent, copyright, trademark, trade secret, and intellectual property rights) in and to the Software and Documentation shall remain exclusively with Cobalt Iron. Nothing in these License Terms shall limit in any way Cobalt Iron’s right to develop, use, license, or create derivative works of the Software or the Documentation. Customer shall not remove or alter any, copyright, trademark, and other proprietary notices in any copies of the Software and Documentation.
    • Although some of the Software components may work together with, rely on, or be relicensed as open source software components by Cobalt Iron, such open source software components are subject to their respective separate licenses as specified in the Documentation.
  3. Usage Limitations and Restrictions
    • The Software components which are licensed can be installed and used for such amount (quantity, capacity, term, or other parameters in the Order Form. Customer agrees to obtain additional Licenses for the Software before it exceeds, or is likely to exceed, any of the limitations applicable to Customer’s License.
    • Customer may not make copies of the Software except that Customer is allowed to make a single copy of the Software solely for backup purposes.
    • Customer expressly acknowledges it is responsible for verifying whether the applicable laws and regulations of the country where Customer intends to install and use the Software and Documentation allows the installation and/or use of the Software and Documentation, and for obtaining all necessary permits, licenses, and authorizations required to be able to so install and use the Software and Documentation.
    • Customer will not use the Software or Documentation except as permitted under these License Terms. Customer will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble, or otherwise reduce the Software to any human perceivable form, or (b) extract or attempt to extract any source code, algorithms, methods, ideas, techniques, workflows, or hierarchies from the Software. Customer may not modify, adapt, translate, rent, lease, loan, or create derivative works based upon, distribute, display or publish, relicense, or sublicense the Software or Documentation or use the Software or Documentation for third-party training, commercial time-sharing, or service bureau use. Customer shall provide Cobalt Iron with such additional information and sign such documents as reasonably requested by Cobalt Iron to allow it to protect its intellectual property, trade secrets and competitive advantage.
    • Customer may not disclose or publish performance benchmark results for the Software without the prior written approval of Cobalt Iron.
    • Customer expressly acknowledges that operation of the Software requires that Customer has or obtains, at Customer’s sole cost and expense, appropriate hardware and third party software.
    • To the extent that Customer provides useful or relevant information to improve the Software, Cobalt Iron will be entitled to freely use and exploit such information without any obligation to Customer.
  4. Obligations of Customer
    • Customer agrees to follow the operation procedures published by Cobalt Iron including, but not limited to, procedures for routine maintenance of the Software.
    • Customer will ensure that the production version of the Software at Customer’s site will have internet access in order to enable the download and installation of new releases of the Software where required or applicable as well as for the operation of the Software solution.
    • Customer shall implement procedures for the protection of data and other information in the event of Errors or malfunctions of the Software or hardware on which the Software is used.
    • Customer shall properly train its staff in the use and application of the Software.
  5. Warranties
    • Cobalt Iron’s warranty is set out on: www.cobaltiron.com/cobalt-iron-limited-software-warranty-policy/
    • Customer must notify Cobalt Iron at support@CobaltIron.com of any breach of the Software Warranty. Customer’s exclusive remedy arising from any breach of the Software Warranty shall be, at Cobalt Iron’s option and at no cost to Customer, for Cobalt Iron to (i) make commercially reasonable efforts to correct or provide a reasonable Workaround for the Error that caused the breach of the Software Warranty or (ii) replace the defective part of the Software.
    • THE SOFTWARE WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, AND COVENANTS, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, COBALT IRON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. USE OF THE SOFTWARE BY CUSTOMER IS AT CUSTOMER’S SOLE RISK. Cobalt Iron makes no representation or warranty (i) that the Software will meet Customer’s requirements, (ii) that all errors, defects, or malfunctions have or can be eliminated from the Software, (iii) that the Software is free of errors, defects, viruses or malfunctions, or that the Software will operate without interruption, or (iv) that the Software will operate with other hardware, software, systems or data, and Cobalt Iron shall in any event not be responsible for losses of any kind resulting from the use of the Software. The Software Warranty applies only to the Customer and is not transferable to any third party or assignee of Customer.
    • In the event of a claim that the Software and/or Documentation infringes a third party’s intellectual property or other right, Cobalt Iron shall at its sole expense: (a) procure for Customer the right to continue using the affected Software and/or Documentation; (b) replace or modify the affected Software and/or Documentation; or (c) terminate this License. If Cobalt Iron terminates, as Customer’s sole remedy, Cobalt Iron will pay to Customer an amount equal to the License Fees paid hereunder in respect of the affected Software for the remaining unused portion of the License Term.
  6. Limitation of Liability
    • TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL COBALT IRON BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR LOST PROFITS AND/OR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, (I) LOSS OF REVENUE, BUSINESS OR USE; (II) LOSS OF ANTICIPATED SAVINGS; (III) LOSS OF ACTUAL OR ANTICIPATED BUSINESS; (IV) LOSS OF GOODWILL OR OPPORTUNITY LOSS; (V) LOSS AND/OR CORRUPTION OF DATA AND/OR OTHER INFORMATION, (VI) LOSS AS A RESULT OF THIRD PARTY CLAIMS; AND/OR (VII) THE COST OF PROCURING REPLACEMENT GOODS AND/OR SERVICES OR REPUTATIONAL DAMAGE. THE FOREGOING LIMITATION WILL APPLY EVEN IF COBALT IRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • COBALT IRON’S LIABILITY TO CUSTOMER FOR CLAIMS ARISING FROM THE SOFTWARE, THE DOCUMENTATION, OR THESE LICENSE TERMS, WHETHER FOR BREACH, INFRINGEMENT, IN TORT, INDEMNIFICATION OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE LICENSE FEES ACTUALLY RECEIVED BY COBALT IRON FOR CUSTOMER’S USE OF THE AFFECTED PORTION OF THE SOFTWARE DURING THE THREE MONTH PERIOD PRECEDING CUSTOMER’S INITIAL NOTICE TO COBALT IRON OF ANY CLAIM.
    • Cobalt Iron shall have no liability or responsibility for problems in the Software, Documentation, or other deliverables caused by Misuse or the malfunction of the network or any third-party software, hardware, or equipment or any other cause not attributable to Cobalt Iron.
  7. Term and Termination
    • The term of these License Terms commences on the date on which the Software is delivered to Customer or otherwise made available.
    • Either party can terminate these License Terms by written notice to the other party, if: (i) the other party breaches these License Terms and fails to cure such breach within thirty days of the receipt of written notice; (ii) such breach is not curable; (iii) the other party makes a general assignment for the benefit of creditors, files a voluntary petition of bankruptcy, or becomes subject to any proceedings under any bankruptcy or insolvency law.
    • If the term of these License Terms expires or is terminated for any reason, the License shall automatically terminate and Customer shall: (i) immediately cease using the Software and the Documentation; (ii) have a Customer senior officer certify to Cobalt Iron within thirty days after the effective date of termination that Customer has permanently deleted, destroyed, or has returned to Cobalt Iron the Software and the Documentation and all copies thereof.
  8. Verification
    • Cobalt Iron shall have the right to inspect and audit Customer’s books, records, and systems to confirm Customer’s compliance with the provisions of these License Terms. Customer agrees to fully cooperate with any such inspection and audit and shall provide all access reasonably required for Cobalt Iron to confirm Customer’s compliance with the terms hereof.
    • In the event that the audit reveals unauthorized use of the Software, then, without prejudice to Cobalt Iron’s other rights, Customer shall promptly pay the additional License Fees required to cover all use of the Software disclosed by the audit. If the audit determines that Customer underpaid the License Fees, Customer shall pay Cobalt Iron’s reasonable costs and expenses for the audit.
    • This clause shall survive the termination of these License Terms and shall stay effective until three years after the termination of these License Terms.
  9. Confidentiality Obligations
    • Customer agrees to keep the Confidential Information of Cobalt Iron confidential and not to disclose it to third parties. Customer shall be entitled to disclose Cobalt Iron’s Confidential Information only to those of its personnel, consultants, and agents that have a reasonable need to know such Confidential Information and provided the Customer instructs its personnel, consultants, and agents to keep, such information confidential by using the same care and discretion that it uses for its own Confidential Information.
    • These obligations shall not apply to any information which: (i) becomes available to the general public through no fault of Customer; (ii) has been validly obtained by Customer from a third party not bound by any confidentiality obligation; (iii) was in Customer’s possession without restrictions prior to the date of disclosure by Cobalt Iron; (iv) was developed by Customer without reference or access to the Confidential Information; or (v) is required to be disclosed by law.
  10. Miscellaneous Terms
    • Compliance with Law; Export Controls.
      Customer will comply with all applicable laws and regulations in its use of the Software and Documentation including all export laws and regulations.
    • Force Majeure.
      Each party shall be excused from delays in performing or its failure to perform hereunder (other than payment of monetary obligations) to the extent that such delays or failures result from Force Majeure. The affected party will cooperate with the other party and reasonably assist this other party in minimizing the impact of the circumstances on the other party.
    • These License Terms may not be assigned by Customer without the prior written authorization of Cobalt Iron. Cobalt Iron reserves the right to transfer, assign, or subcontract all or part of these License Terms at any time.
    • If any part of these License Terms is found by a court to be invalid, unlawful, or unenforceable then such part will be severed from the remainder of these License Terms which will continue to be valid.
    • The rights and obligations under these License Terms which by their nature should survive will remain in effect after any termination or expiration hereof.
    • Cobalt Iron may use Customer’s name and logo in press releases, product brochures, financial reports, and other materials indicating that Customer is a customer. The Customer shall only disclose performance benchmark results for the Software with the prior written approval of Cobalt Iron.
    • Entire Agreement; Amendments.
      These License Terms constitute the entire agreement between the parties and supersede all prior agreements or representations, written or oral. These License Terms may not be modified or amended except in a writing signed by a duly authorized representative of each party.
    • Governing Law; Venue.
      These License Terms are governed by and will be interpreted in accordance with the laws of Kansas and any dispute shall be subject to the exclusive jurisdiction of the courts of Lawrence, Kansas.