Terms of sale and end user license agreement

1. Parties and scope

These terms are an agreement between Cognivio (“Cognivio”, “we”) and the organisation that places an order (“Customer”, “you”). They cover hardware appliances on which Cognivio software is installed (“Appliances”), the software itself (“Software”), project services such as design, installation, integration, commissioning and training (“Services”), and support and maintenance agreements (“Support”). An order consists of a proposal issued by Cognivio and its written acceptance by the Customer.

2. Appliances

Title to an Appliance passes to the Customer on payment in full; risk passes on delivery. Appliances are supplied configured for the project described in the order. Cognivio may substitute hardware components of equal or better specification when the ordered ones are unavailable, without changing the agreed function or price.

3. Software license

The Software installed on an Appliance is licensed, not sold. Subject to these terms, Cognivio grants you a perpetual, non-exclusive, non-transferable license to use the Software on that Appliance, for your own internal business purposes, up to the capacity stated in the order. The license transfers with the Appliance if you sell it, provided the new owner accepts these terms. Software updates provided under Support are licensed on the same conditions.

4. Restrictions

You may not: copy the Software to other hardware or run it outside the Appliance; sublicense, rent or provide it as a service to third parties; reverse engineer, decompile or disassemble it except where the law allows this regardless of contract; remove or circumvent capacity or license checks; use it to build a competing product; or use it in violation of applicable law, including export control law.

5. Ownership

Cognivio and its licensors keep all rights, title and interest in the Software and in the documentation, including all intellectual property rights. Open-source components included in the Software are governed by their own licenses, listed in the documentation, and nothing in these terms limits your rights under them. Designs, drawings and documentation produced in a project may be used by the Customer for operating and maintaining the installation.

6. Services

Services are described in the scope of work in the order. Cognivio performs them with reasonable skill and care and with suitably qualified engineers. The Customer provides timely access to sites, networks, equipment and staff, and the information needed to do the work. Changes to the scope are agreed in writing, with their effect on price and schedule. Services are complete when the acceptance tests defined in the order have passed, or, if the Customer does not carry out acceptance within 10 business days of being invited to, on the expiry of that period.

7. Support and maintenance

Where a Support agreement is ordered, it covers software updates for the installed Appliances, incident response with the reaction times stated in the order, and hardware replacement as described there. Support is for an annual term, renewing unless either party gives notice at least 60 days before the end of the term. Support covers Appliances running the current or the previous major software version.

8. Prices and payment

Prices are stated in the order, exclusive of taxes, duties and shipping unless the order says otherwise. Unless agreed differently, Appliances are invoiced on shipment, Services on milestones stated in the order, and Support annually in advance. Invoices are payable within 30 days. Cognivio may suspend Support and withhold deliveries while undisputed invoices are overdue.

9. Customer responsibilities

You are responsible for the sites, networks and equipment the Appliances are connected to, for the environmental and electrical conditions stated in the documentation, for the content transported through the Appliances and for having the rights to that content, and for complying with the laws that apply to your use of them, including data protection law where the Appliances process personal data.

10. Data protection

Appliances run on your infrastructure and Cognivio does not receive the media or network data they handle. Personal data that we process in the course of selling and supporting Appliances is described in the privacy policy. Where we process personal data on your behalf, for example during remote support, the data processing agreement forms part of these terms.

11. Warranty

Hardware. Cognivio warrants Appliances against defects in materials and workmanship for 24 months from delivery. A defective Appliance is repaired or replaced; where a Support agreement includes advance replacement, a replacement unit is shipped before the defective one is returned.

Software. Cognivio warrants that the Software will perform materially as described in its documentation for 12 months from acceptance and, under a Support agreement, for the term of that agreement. If it does not, Cognivio corrects the defect or, if it cannot within a reasonable time, refunds the fee attributable to the affected function.

Services are warranted to be performed with reasonable skill and care; defective work is re-performed.

Warranties do not cover damage caused by accident, misuse, modification, environmental conditions outside the documented range, or equipment and networks not supplied by Cognivio. Except as stated in this section, the Appliances, Software and Services are provided without other warranties, express or implied, including merchantability, fitness for a particular purpose and non-infringement, to the extent permitted by law.

12. Limitation of liability

To the extent permitted by law, neither party is liable to the other for indirect, incidental, special or consequential damages, or for loss of profits, revenue, data or broadcast time, arising from these terms, however caused. Cognivio’s total liability under an order is limited to the amount paid under that order. These limits do not apply to liability that cannot be limited by law, to breach of section 4, or to either party’s indemnity obligations.

13. Indemnity

Cognivio will defend you against any third-party claim that the Software or an Appliance, as delivered, infringes a patent, copyright or trademark, and pay the damages finally awarded, provided you notify us promptly and let us control the defence. If such a claim is made, we may modify the product, obtain a license, or take it back and refund its price less reasonable depreciation.

14. Term and termination

Either party may terminate an order for material breach that is not cured within 30 days of notice. On termination of the Software license you must stop using the Software; sections 4, 5, 9, 12, 13 and 15 and any payment obligations survive. Termination of a Support agreement does not affect the license to the installed Software.

15. General

These terms and the order are the whole agreement between the parties for that order and replace all earlier discussions. If a provision is found unenforceable, the rest remains in force. Neither party may assign these terms without the other’s consent, except to a successor of its business. Notices are sent by email to the addresses in the order and to office@cognivio.net. These terms are governed by the law of the country in which Cognivio is incorporated, and the courts of that country have exclusive jurisdiction, without prejudice to mandatory local law where it applies.

16. Changes

We may update these terms for future orders. The version in force for an order is the one published on the date of the order, which we will provide on request.