END-USER LICENSE AGREEMENT





This End-User License Agreement ("Agreement") governs the provision by Cognizant Technology Solutions India Pvt. Ltd. ("Cognizant") and the access and use by you ("you" or "Customer") of Cognizant's Software (as hereinafter defined). Cognizant grants you access to the Software based upon a license purchased by a client of Cognizant (the "Client" or "Licensee").

PLEASE READ THIS LICENSE CAREFULLY BEFORE USING THE SOFTWARE. REGARDLESS OF HOW YOU ACQUIRE THE SOFTWARE (ELECTRONICALLY, PRE-LOADED, ON MEDIA OR OTHERWISE), BY DOWNLOADING, INSTALLING, COPYING OR USING THE SOFTWARE, YOU ACKNOWLEDGE HAVING REVIEWED AND ACCEPTED THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS, YOU SHOULD NOT DOWNLOAD, INSTALL, COPY OR BEGIN USE OF YOUR ACCOUNT OR THE SOFTWARE, AND YOU SHOULD IMMEDIATELY NOTIFY COGNIZANT.

1.       DEFINITIONS.

1.1    "Confidential Information" means all information or materials of Cognizant, whether commercial, financial, technical or otherwise, disclosed directly or indirectly to you (whether disclosed orally, in documentary form, by demonstration or otherwise) which is contained in any form or media whatsoever (including, without limitation, data, drawings, films, documents and computer readable media) and which is confidential or proprietary to Cognizant, including, but not limited to, the Software.

1.2    "Derivative Work" means any derivative work of, translation, modification, adaption, enhancement, upgrade, addition, development or improvement to all or any part of the Software.

1.3    "Documentation" means the related user manuals and documentation, if any, that Cognizant makes available to you in connection with the Software.

1.4    "Software" means the executable object code version and/or reference instance of COGNIZANT ENGAGEMENT CATALYST and any other software applications that Cognizant provides to you with this Agreement.

2.       EVALUATION LICENSE.

2.1    If available, the Software may be activated with a no-cost evaluation license key code provided by Cognizant. You acknowledge and agree that such evaluation license key code has an expiration date ("Expiration Date") and that Cognizant is not obligated to permit further use or access of the Software.

2.2    If you activate the Software with an evaluation license key code ("Evaluation Software"), you may use the Evaluation Software until the Expiration Date solely in and for Client's own internal evaluation, examination and testing purposes in order for Client to determine its interest in any future use or application of the Software and the acquisition of a license or other rights in respect of the Software.

3.       LICENSE AND USE.

3.1    Subject to the terms and conditions of this Agreement, Cognizant hereby grants you a limited, personal, non-exclusive and non-transferable right and license, without right of sublicense, to use the Software and/or Reference Instance in connection with Licensee Products and the web services, computing platforms or applications provided by Amazon.com or its affiliates, including Amazon Web Services, Inc. (made available directly to you under separate terms and conditions, including separate fees and charges). For purposes of clarity, Licensee may NOT use the Software and/or Reference Instance or any part of the Software and/or Reference Instance with a non-Cognizant Product, except as described in this Section. 

3.2    Depending upon the model utilized to compute the applicable License Fee paid by Client to use the Software (whether per system, per node/user, or any other Cognizant approved licensing model), an applicable license key code may limit your usage of the Software accordingly. For node-locked licenses, you may install and use one copy of the Software on a single designated computer only for Client's internal business purposes and such node-locked license is limited to use by you on such designated computer for the duration of your License, which is controlled by the license key code for the Software. For the avoidance of doubt, sharing of a node-locked license between individuals sharing a computer is not permitted unless each individual accessing or using the Software has acquired the right form of license (system license) for the Software. You may make one copy of the Documentation in connection with your authorized use of the Software.

3.3    You shall not distribute, sell, lease, license or otherwise make the Software available to a third party. You shall not reproduce, copy, translate, modify, adapt, decompile, disassemble or reverse engineer the object code version of or otherwise attempt to secure the source code of all or any part of the Software, except strictly as and to the extent expressly authorized by applicable law. You shall not use the Software in any live business operations or production environment, whether of yourself, Client or any third party.

4.       OWNERSHIP.

4.1    You acknowledge and admit the validity, and Cognizant's ownership of, all trademarks, service marks, patents, copyrights, trade secrets and other proprietary and intellectual property rights in or related to the Software ("IPR"). All IPR are and shall remain the exclusive property of Cognizant and/or its licensor(s), whether or not specifically recognized or perfected under local applicable law. You shall not take any action that jeopardizes or could jeopardize Cognizant's or its licensor's IPR or acquire any right in the Software, except the limited use rights specified in Section 2. Cognizant and/or its licensor(s) shall own all IPR in any copy of the Software and all Derivative Works.

4.2    You shall not modify, enhance or create Derivative Works of the Software. Without prejudice to any other right or remedy of Cognizant, you hereby irrevocably assign, transfer and convey to Cognizant without further consideration all of its rights, title and interest (if any) in and to all Derivative Works made by or for you, together with any IPR subsisting therein. Upon Cognizant's request, you shall execute and deliver to Cognizant all instruments and other documents, and shall take such other actions reasonably requested by Cognizant, so that Cognizant may protect and defend its rights in and to the Software and Derivative Works and associated IPR.

4.3    All feedback provided by you and related to the Software, including suggested improvements or modifications to the Software, is deemed to be Confidential Information. Cognizant may use such feedback for any purpose, including, without limitation, improvement and/or modification of the Software, and Cognizant owns all rights and associated IPR in such improvements and modifications.

4.4 You/Licensee will not: (a) engage in unauthorized use, modification, disclosure or distribution of the Reference Instance or Documentation, or its derivatives; (b) use all or any portion of the Reference Instance, Documentation, or its derivatives except in conjunction with Cognizant Products and/or Licensee Products or (c) reverse engineer (by disassembly, de-compilation or otherwise) the Reference Instance or any portion thereof. Licensee may not remove or alter any Cognizant copyright or other proprietary rights notice posted in any portion of the Software and/or Reference Instance or Documentation. Licensee is solely responsible for: (d) its development, content, operation, maintenance, and use of the File Image; (e) properly configuring and using the Reference Instance and taking steps to maintain appropriate security, protection and backup of its use of the Reference Instance, appropriate security, protection and backup of its use of the Reference Instance and any related content; and (f) providing customer service (if any) to Third Parties. Licensee will defend, indemnify and hold Cognizant and its subsidiaries harmless from and against any and all claims, costs, damages, expenses (including reasonable attorney's fees), liabilities, and losses, including without limitation: (g) any claims directly or indirectly arising from or related to the use, modification, disclosure or distribution of the Reference Instance, Documentation, or any intellectual property rights related thereto; (h) the use, sale and distribution of Licensee Products or Third Party Products; and (i) breach of this Agreement.



5.       FEES AND PAYMENT.

5.1    In exchange for the License, you and/or Client shall pay Cognizant the license fee based on the Cognizant approved licensing model selected (the "License Fee") upon delivery of the Software and the license key code.

6.       INDEMNIFICATION AND WARRANTIES.

6.1    You shall indemnify, defend and hold harmless Cognizant, its affiliates and their respective directors, officers, shareholders, members, employees, representatives, agents, attorneys, successors and assigns from and against any and all settlements, judgments, awards, fines, penalties, interest, liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees, disbursements and court costs) based upon, relating to or arising from your use or distribution of the Software and any additional software or content you distribute in conjunction with the Software.

6.2    You acknowledge and agree that the Software is provided "as is, with all faults", without any maintenance, debugging, support or improvement. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, COGNIZANT MAKES NO REPRESENTATIONS AND GIVES NO WARRAN-TIES, GUARANTEES OR ASSURANCES OF ANY KIND, EITHER EXPRESS OR IMPLIED (IN LAW OR IN FACT),  IN RELATION TO THE SOFTWARE OR YOUR ACCESS TO OR USE OF SAME OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. COGNIZANT DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRE-SENTATIONS AND WARRANTIES, GUARAN-TEES OR OTHER ASSURANCES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF QUALITY, MERCHANT-ABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR USE, OR NONINFRINGEMENT. You shall not make any statements, representations or warranties with respect to any person or entity that are inconsistent with any limitation or disclaimer included in this Section 5. No warranty is given that the Software or any other information or materials provided to you hereunder will conform to any description thereof or be uninterrupted or free of omissions, errors or defects.

6.3    Cognizant further disclaims all responsibility for any loss, injury, claim, liability, or damage of any kind resulting from, arising out of, or in any way related to (a) any errors in or omissions from the Software, including but not limited to technical inaccuracies and typographical errors, (b) any third party web sites or content therein directly or indirectly accessed through links provided in or in connection with the Software, including but not limited to any errors in or omissions therefrom, (c) the unavailability of the Software or any portion thereof, (d) Your use of the Software or the information accessible therefrom or any decision made using the Software, (e) unauthorized access to the Software or information provided therein, or (f) Your use of any equipment or software in connection with the Software or the information accessible therefrom.

6.4    You assume the full and sole responsibility and liability as to the quality, use of, results, performance and/or non-performance of the Software. You shall have the sole responsibility to verify that the Software are usable and meet its requirements, and to adequately protect and backup its data, software or equipment used in connection with the Software.



7.       LIMITATION OF LIABILITY.

7.1    In no event shall Cognizant (including its officers, employees, and agents) be responsible or liable for any loss of profit, business, revenue, use, data, opportunity or any indirect, special, consequential, incidental, punitive or other damages whatsoever in connection with, arising out of, or related to this Agreement or your possession or use of the Software, regardless of the theory of liability, whether under contract, warranty, strict liability, or in tort (including negligence) or otherwise, even if such damage may have been foreseeable or Cognizant may have been previously advised of the possibility of such damage.

7.2    Subject always to Section 7.1, the maximum aggregate liability of Cognizant (including its officers, employees, and agents) for all causes of action arising under or in connection with this Agreement shall not exceed the lesser of the License Fee or $250.

7.3    You acknowledge and agree that the limitations of liability and restrictions set forth in this Agreement are reasonable under the circumstances.

8.       CONSENT.

8.1    You agree that Cognizant or its affiliates may collect and use technical and related information, including, without limitation, technical information relating to your computer, system and application software and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Software, and to verify compliance with the terms of this Agreement. Cognizant may use this information, as long as it is in a form that does not personally identify you, to improve our products or to provide services or technologies to you.

9.       CONFIDENTIAL INFORMATION.

9.1    You acknowledge and agree that the Software constitute and incorporate Cognizant's Confidential Information. You shall take all reasonable precautions necessary to safeguard the confidentiality of all Confidential Information. You shall not allow the removal or defacement of any confidentiality or proprietary notice placed on any Confidential Information. The placement of copyright notices on these items shall not constitute publication or otherwise impair their confidential nature.

9.2    You shall not disclose, in whole or in part, the Software or Confidential Information, or other information that has been designated as confidential, to any individual, entity or other person.

9.3    The obligations in Sections 9.1 and 9.2 shall not apply to any Confidential Information that (a) you can clearly demonstrate by documentary evidence was in your possession at the time of disclosure and without restriction as to confidentiality, and (b) at the time of disclosure is generally available to and known by the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act directly or indirectly by you. In addition, you may disclose Cognizant's Confidential Information to the extent required to comply with applicable laws or a binding order from a judicial body with authority over it, provided that you shall take all reasonable steps necessary to obtain confidential treatment for any such Confidential Information which is required to be disclosed. You shall promptly provide Cognizant with written notice of any such request or demand to disclose Confidential Information so that Cognizant shall have an opportunity to seek a protective order or other remedy.

9.4    You shall, either upon learning of, or upon a showing by Cognizant of, any threatened or actual breach of the provisions of this Section 9 or of any threatened or actual unauthorized use or disclosure of Cognizant's Confidential Information, or in the event of any loss of, or inability to account for, such Confidential Information, immediately notify Cognizant thereof and shall cooperate at your expense with Cognizant's efforts and take such steps as Cognizant may require to seek appropriate injunctive relief or otherwise to prevent or curtail such threatened or actual breach or unauthorized use or disclosure or to recover the Confidential Information.

9.5    You acknowledge and agree that the Confidential Information constitutes and incorporates confidential, proprietary and valuable information or materials developed or acquired by or licensed to Cognizant and that violation by you of the provisions of Sections 2, 3 or 9 of this Agreement may cause Cognizant and/or its licensors irreparable injury not compensable by money damages for which Cognizant may not have an adequate remedy at law. Accordingly, if Cognizant institutes an action or proceeding to enforce the provisions of Sections 2, 3 or 9 of this Agreement, Cognizant shall be entitled to seek injunctive or other equitable relief to enforce such provisions or to prevent or curtail any breach thereof, threatened or actual. The foregoing shall be in addition to and without prejudice to or limitation on any other rights Cognizant may have under this Agreement, at law or in equity.

10.    TERMINATION.

10.1This Agreement is effective on the date you accept it and will terminate without notice on the last day of the time period of your License, which is controlled by the license key code for the Software.

10.2Cognizant may, without prejudice to any other right or remedy, terminate this Agreement with immediate effect if you breach any provision of this Agreement.

10.3Upon termination or expiration of this Agreement, all rights granted to you hereunder shall cease, and you shall promptly (a) purge the Software from the designated computer and all of your computer systems, storage media and other files; (b) either destroy or return to Cognizant, as Cognizant may request, all Software within your possession and/or control, and all copies thereof; and (c) deliver to Cognizant an affidavit which certifies that you have complied with these termination obligations.

11.    U.S. GOVERNMENT RIGHTS.

11.1 If the Software is acquired by or on behalf of a civilian agency, the U.S. Government acquires the Software and Documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires the Software and Documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This Section 10 is in lieu of, and supersedes, any other FAR, DFARS or other section or provision that addresses government rights in computer software or technical data under this Agreement.

12.    MISCELLANEOUS.

12.1 Third Party Programs. Licensee acknowledges that it is Licensee's responsibility to comply with any third party license terms or requirements applicable to the use of such third party software, specifications, systems, or tools. This includes, by way of example but not as a limitation, any web services, computing platforms or applications provided by Amazon.com or its affiliates, including Amazon Web Services, Inc. Cognizant is not responsible and will not be held responsible in any manner for Licensee's failure to comply with such applicable terms or requirements. THIRD PARTY SOFTWARE COMPONENTS ARE MADE AVAILABLE IN THE SERVICE IN THE HOPE THAT THEY WILL BE USEFUL TO THE SERVICE. UNLESS SPECIFICALLY PROVIDED IN THE RESPECTIVE THIRD PARTY SOFTWARE LICENSE TERMS, THIRD PARTY SOFTWARE IS MADE AVAILABLE "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL COGNIZANT, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIRD PARTY SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

12.2Inspection. During the term of this Agreement, Cognizant or its representative may, upon prior notice to you, inspect your files, computer processors, equipment and facilities during normal working hours to verify your compliance with this Agreement. While conducting such inspection, Cognizant or its representative shall be entitled to copy any item that you may possess in violation of this Agreement.

12.3No Third Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns.

12.4Binding Effect and Assignment. This Agreement and the licenses granted under it are personal to you and you may not assign, encumber or otherwise transfer or dispose of any of its rights, duties or obligations under this Agreement without Cognizant's express prior written consent. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns

12.5Governing Law. This Agreement and any dispute or non-contractual obligation arising out of or in connection with it shall be governed by and construed in accordance with the laws of the State of New York, without reference to the principles of conflicts of law that would apply the substantive laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. The parties hereby agree that their respective rights and obligations hereunder shall be solely and exclusively as set forth herein and that the Uniform Computer Information Transactions Act (UCITA), whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, shall not apply to this Agreement and is hereby disclaimed. Each party hereby submits to the exclusive jurisdiction of the courts, state or federal, sitting in New York City over any dispute arising out of or in connection with this Agreement and waives the right to object to such venue or make a claim of forum non conveniens. Notwithstanding the foregoing, nothing shall prevent Cognizant from commencing legal proceedings for the purpose of seeking immediate preventative relief (such as an injunction or the equivalent) in the appropriate jurisdiction.

12.6Amendments and Waivers. This Agreement may be modified only by a written amendment executed by both parties. No waiver by either party of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the party giving such waiver. No waiver by either party with respect to any default, misrepresentation, or breach of warranty or covenant hereunder shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

12.7Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision shall be severed from this Agreement and have no effect and the remaining provisions shall continue in full force.

12.8 Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other prior or contemporaneous communications between the parties relating to the subject matter herein.

12.9 Headings. The section and paragraph headings contained in this Agreement are for convenience of reference only and shall not affect, define or limit in any way the meaning or interpretation of this Agreement.

12.10 Survival. The terms and conditions of Sections 4, 6, 7, 8, 9, 10.3 and 12 shall survive any termination or expiration of this Agreement.





 

ACCEPTANCE: YOU ACKNOWLEDGE YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS UPON FIRST USE OF THE SOFTWARE COVERED HEREBY.