1. Definitions

1.1 “Affiliate”

Means any entity that directly or indirectly controls, is controlled by, or is under common control with the Client. As used herein, “control” or “controlled” or “controlling” means and is deemed to exist by virtue of owning a majority of the voting securities of another entity or otherwise having the power to direct the day-to-day business or affairs of such other entity.

1.2 “Authorized User”

Unless otherwise provided in the Schedule, means a named employee of the Client or an Affiliate (or an employee of an authorized subcontractor or consultant performing services for the Client or an Affiliate), to whom Client has assigned user credentials to access the Cogito Solution, which remain active.

1.3 “Background Intellectual Property”

Means all patent, copyright, trademark, trade secret and other intellectual property rights that were developed or acquired by a party to this Agreement prior to entering into the Agreement.  For clarity and without limitation, as between the parties, all intellectual property rights in and to the Cogito Solution are the Background Intellectual Property of Cogito and will at all times be and remain the sole and exclusive property of Cogito.

1.4 “Client Data”

Means all data owned, licensed, leased or developed by or on behalf of the Client or an Affiliate and provided to Cogito and/or introduced to the Cogito Solution pursuant to this Agreement, but excluding Generic Data.  For the avoidance of doubt, Client Data constitutes Confidential Information.

1.5 “Cogito Solution”

Means, collectively, the Cogito Dialog software-as-a-service application, third-party software embedded in this application, any and all application infrastructure and/or middleware required to operate this application, all documentation relating to this application, and all enhancements, modifications and improvements to this application.  For the avoidance of doubt, as between the parties, the Cogito Solution is the sole and exclusive property of Cogito and constitutes Confidential Information of Cogito within the meaning of this Agreement.

1.6 “Confidential Information”

Means such party’s proprietary or confidential information, including, without limitation, technical data, trade secrets, know-how, business processes, product plans, product designs, service plans, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, and marketing, distribution or sales methods and systems, sales and profit figures or other financial information.  Cogito’s Confidential Information includes the Cogito Solution. Information is not deemed Confidential Information and neither party has any obligation with respect to any information which: (i) enters into the public domain through no wrongful act of the receiving party; (ii) is rightfully received from a third party without restriction and without breach of this Agreement; (iii) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party, as evidenced by the receiving party’s written records; or (iv) is already in receiving party’s possession as evidenced by its records and is not the subject of a separate non-disclosure agreement.

1.7 “Generic Data”

Means information derived and/or generated by Cogito from the operation of the Services for the purpose of provisioning, maintaining, and improving the Services or operating Cogito's business, such as improving system performance, increasing system availability, and enhancing the effectiveness of the live guidance provided by the Services.

1.8 “Services”

Means mutually-agreed services, including without limitation professional services as specified in one or more Subscription and Services Schedules.

1.9 “Subscription and Services Schedule” or “Schedule”

Means a written document in a form provided by or approved by Cogito that is signed by authorized representatives of the parties, pursuant to which the Client agrees to purchase a subscription for the Cogito Solution and/or Services from Cogito relating to the Cogito Solution. A Schedule is not effective or binding on a party unless and until an authorized representative of each party has executed such Schedule. To the extent the parties wish to modify any terms set forth in a Schedule, such modifications must be set forth in a written amendment or change order to the Schedule signed by authorized representatives of each party.

 

2. Subscription Grant

2.1 Grant of Subscription

A. Subscription

Subject to the terms and conditions of this Agreement, Cogito grants Client a limited, non-exclusive, non-sublicensable and non-transferable subscription to use the Cogito Solution in object code form (but not source code) during the term of the applicable Schedule, for the purpose and volume of use specified on the Schedule.  Client may designate subcontractor and consultant personnel as Authorized Users, provided that the Client is responsible for ensuring that such personnel comply with all terms and conditions of use of the Cogito Solution and further provided that the Client is liable to Cogito.

B. Client Infrastructure

The Client acknowledges that use of the Cogito Solution requires the use of a computer system and Internet connectivity meeting the minimum technical requirements communicated by Cogito to the Client. Procurement and maintenance of such computer system and Internet connectivity is the sole and exclusive responsibility of the Client.

2.2 Conditions of Use

A. No Reverse Engineering

The Client may not modify, disassemble, reverse compile or otherwise reverse engineer the Cogito Solution, and may not copy, translate or make derivative works of the Cogito Solution. The Cogito Solution is provided as a subscription service, not sold, and no rights are granted by Cogito except as expressly set forth in this Agreement.

B. No Third-Party Use

The Client may not, and may not permit any third party to, rent, lease, sublicense, sell, assign or otherwise transfer the Cogito Solution. The Client may not, and may not permit any third party to, use the Cogito Solution directly or indirectly to provide a time-sharing or subscription service to any third party or to function as a service bureau or application service provider. The Client may not, and may not permit any third party to, copy, distribute, sell, or otherwise make available any Cogito-supplied content other than as expressly permitted in this Agreement.

C. Proprietary Markings

The Client may not, and may not permit any third party to, alter, remove or conceal any copyright, trademark or other proprietary notice or disclaimer on the Cogito Solution.

D. Unauthorized Users

The Cogito Solution may be used only by Authorized Users.  Each Authorized User must have his or her own user credentials for the Cogito Solution. The Client and Authorized Users may not share user credentials among multiple users, or otherwise use the Cogito Solution on a concurrent or shift user basis.  If an Authorized User ceases to be employed by the Client, an Affiliate, or a subcontractor of Client, or is reassigned to a position that does not require access to the Cogito Solution, the subscription for that Authorized User may be assigned to a different individual within the business units covered by the applicable Schedule, provided that the Client notifies Cogito of such reassignment, specifying the Authorized User who will no longer be using the Cogito Solution and the new Authorized User who will be assuming the subscription.

E. Unauthorized Use

The Client must notify Cogito promptly in writing of the existence of any unauthorized access, disclosure, distribution, possession, alteration, transfer, reproduction or other unauthorized use of the Cogito Solution of which the Client becomes aware and will cooperate with all reasonable requests of Cogito in connection with remedying such unauthorized use.

 

3. Intellectual Property

3.1 Background Intellectual Property

The parties recognize and acknowledge that each party is and will remain the owner of its respective Background Intellectual Property, and nothing in the Agreement will be construed to convey to the other party any license to use, sell, exploit, copy, modify, develop or create derivative works based upon the other’s Background Intellectual Property, except as expressly licensed under this Agreement.

3.2 Cogito Solution Enhancements and Generic Data

Notwithstanding anything to the contrary elsewhere in the Agreement, all right title and interest in any Generic Data is owned exclusively by Cogito as well as all improvements, updates, and/or enhancements to the Cogito Solution developed during the term of the Agreement which are not specific to Client, and all patent, copyright, trademark, trade secret and other intellectual property rights embodied in or associated with such improvements, updates and enhancements.

3.3 Feedback License

To the extent that Client or any other Authorized User of the Cogito Solution provides Cogito with any feedback regarding, suggestions for improvement, further development or enhancement of, or other comments relating to or in connection with, the Cogito Solution (collectively “Feedback”), such Feedback shall be owned exclusively by Cogito to the extent that it is generally applicable to other clients of Cogito. To the extent that such Feedback is specific to Client, Client hereby grants (for itself and on behalf of each Authorized User) Cogito a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, paid up, sublicenseable and transferable license to use and exploit such Feedback without restriction, and free from any obligation to compensate Client or any third party.

3.4 Client Data and Client Confidential Information

All right, title and interest in Client Data and Client Confidential Information is owned by the Client.  Client grants to Cogito a non-exclusive, non-transferable (except as expressly provided in this Agreement), and limited right for Cogito to access and use the Client Data and Client Confidential Information for the Term of this Agreement for the purposes expressly permitted under this Agreement and the applicable Schedule.

 

4. Responsibilities of the Client

4.1 Interface and Usage

The Client is responsible for (a) any interfacing between the Cogito Solution and all other software and database(s) used by Client, (b) managing and operating the Client’s use of the Cogito Solution, and (c) maintaining the security of all user credentials to the Cogito Solution.

4.2 Malicious Code

The Client will not intentionally introduce, nor permit Authorized Users or third parties to intentionally introduce, into the Cogito Solution or the platform on which Cogito hosts the Cogito Solution any software virus, worm, Trojan horse, logic bomb, spyware, malware or other malicious code (collectively “Malicious Code”) and the Client will use reasonable efforts to prevent the introduction of such Malicious Code.

4.3 Compliance with Agreement

The Client will ensure that the Cogito Solution is used solely in accordance with the terms of these Terms of Use and will restrict use of the Cogito Solution to the Authorized Users and ensure compliance by each Authorized User with this Agreement.

4.4 Compliance with Law

The Client will comply with all applicable United States and foreign laws, rules, and regulations related to the Client’s implementation, subscription, and/or use of the Cogito Solution.

4.5 Cooperation

Client will cooperate reasonably and in good faith with Cogito in Cogito’s performance of the Services by, without limitation: (a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Cogito to perform its obligations under each Schedule; (b) timely delivering any materials and other obligations required under each Schedule; (c) timely responding to Cogito inquiries related to the Services; (d) assigning an internal project manager for each Schedule to serve as a primary point of contact for Cogito; (e) actively participating in scheduled project meetings; and (f) complete, accurate and timely information, data and feedback as reasonably required.

 

5. Disclaimer of Warranties

5.1 Disclaimer of Warranties

COGITO MAKES AND CLIENT RECEIVES FROM COGITO NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICES WHICH ARE NOT EXPRESSLY STATED IN THIS AGREEMENT.  COGITO SPECIFICALLY AND WITHOUT LIMITATION DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.  COGITO MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY SOFTWARE OR DATABASE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COGITO DOES NOT WARRANT THAT THE SERVICES WILL BE FREE FROM BUGS, DEFECTS OR ERRORS, OR THAT THE SERVICES WILL BE ACCESSIBLE WITHOUT INTERRUPTION.

Cogito may modify these Terms of Use from time to time. If the changes will have a material impact on Client, Cogito will provide notice to Client.