the terms of this Agreement and CKSS has received the appropriate licensing fee for access to the Licensed Product. 1.11
License Agreement BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON ANY ″ACCEPT″ BUTTON, OR OTHERWISE USING THE PROGRAM, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF LICENSEE, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN ″ACCEPT″ BUTTON, OR USE THE PROGRAM; AND Section 1 - Definitions 1.1
“Acceptance” or “Accept” mean the method provided by CKSS for Licensee to indicate its agreement to the terms of this Agreement and Licensor has received the appropriate fee for the Licensed Product.
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“Affiliated Entity” means corporations, partnerships, or other entities that directly or indirectly through one or more intermediaries, control, or are controlled by, or are under common control with Licensee.
1.3 ″Authorized Use″ means the granted permission by CKSS for Licensee to access and use the Licensed Product. 1.4 “Authorized Copy” means any copy of the Licensed Product made by Licensee including copies containing Licensee’s Content that are made by means of an Authorized Use. 1.5
″CKSS″ or “Licensor” means CKSecurity Solutions, LLC.
1.6 “Competitor” means an entity or individual which makes available a product that assists DOD contractors to comply with DFARS 252.204-7012. 1
1.7 “DFARS” means DOD’s Federal Acquisition Regulation Supplement. 1.8 “DFARS Toolkit” means a suite of template documents prepared by CKSS that aid DOD contractors to comply with the remediation requirements set forth in DFARS 252.204-7012. 1.9
“DOD” means the U.S. Department of Defense.
1.10 “Effective Date” means the date on which Licensee Accepts the terms of this Agreement and CKSS has received the appropriate licensing fee for access to the Licensed Product. 1.11 “End-User(s)” means employees and contractors of Licensee who are designated by Licensee to be authorized to use the Licensed Product solely in accordance with this Agreement. 1.12 “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible rights associated with the Licensed Product, as it may be amended or updated, including but not limited to copyrights, moral rights, trademark rights, trade secret rights, patents, designs, all other intellectual rights, including registrations and applications, now or hereafter in force, of every kind and nature throughout the world, whether arising by operation of law, contract, license or otherwise. 1.13 ″Licensed Product″ (″LP″) means the DFAR Tool Kit which, subject to the terms of this Agreement, will be made available to Licensee at www.CKSS.com 1.14 “Licensee” means the entity that accepts the License. “Licensee” does not mean an Affiliated Entity. 1.15 “Licensee’s Content” means all information, including personally identifiable information, text, graphics and other data which Licensee uses with respect to the LP. 1.16 “Update” means CKSS will update the DFAR Toolkit following DOD regulation changes. 2
1.17 ″Warranty Period″ means one year from the Effective Date of this Agreement. Section 2 – The Licensed Product 2.1 This Agreement is the complete understanding between the Parties regarding Licensee’s use of the Licensed Product. It replaces any prior oral or written communications between Licensee and CKSS concerning Licensee’s use of the Licensed Product. 2.2 The Licensed Product and all the associated Intellectual Property Rights are owned by CKSS and are licensed, not sold to Licensee. 2.3 CKSS grants Licensee a nonexclusive, non-sublicensable, non-transferable, perpetual license to (a) use the Licensed Product; and (b) make and install copies of the LP to support such Authorized Use by End-Users, all provided that: 2.3.1 Licensee has lawfully obtained the LP and complies with the terms of this Agreement. 2.3.2 Licensee reproduces all copyright notices, trademarks and other legends of ownership on each copy, or partial copy, of the Licensed Product as such may be created by Licensee upon the insertion of Licensee’s Content. 2.3.3 Licensee ensures that only End Users use the Licensed Product (accessed either locally or remotely) solely on Licensee’s behalf and that they comply with the terms of this Agreement.
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2.3.4 Licensee does not: (a) use, copy, modify, or distribute the Licensed Product except as expressly permitted in this Agreement; or (b) rent or lease the Licensed Product. 2.4 This License applies to each authorized Copy of the Licensed Product that Licensee makes. 2.5 Except for the rights expressly granted to Licensee under this Agreement, CKSS retains all other rights. Section 3 - Term and Termination 3.1 This Agreement is effective from the Effective Date until terminated. 3.2 Licensee may terminate this Agreement for any reason provided it complies with the requirements of Subsection 3.3. 3.3 If the license is terminated for any reason by either Party, Licensee agrees to promptly discontinue use of and destroy all of Licensee’s copies of the Licensed Product and provide Licensor by Notice with proof of same. 3.4 Any terms of this Agreement that by their nature extend beyond termination of this Agreement remain in effect until fulfilled, and apply to both Parties’ and their respective successors and assignees. Section 4 - Fees 4.1 Fees for the licensing of the LP and any Updates appear on Schedule 1, attached hereto and made a part hereof. 4.2 CKSS does not give credits or refunds for Fees already due or paid. 4.3 If Licensee wishes to change its Authorized Use, Licensee shall notify CKSS in advance and pay any applicable Fees. Section 5 - Taxes
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5.1 Licensee shall be responsible for all excise, sales and use taxes, fees, assessments and other charges imposed by any federal, state or local government or governmental agency resulting from this Agreement and the license granted hereby, except other than taxes based in the income of CKSS. Section 6 – Licensed Product Transfer 6.1 In accordance with this Agreement, Licensee may transfer to a third party, not a Competitor to CKSS, all of its rights, title and interest in the LP provided it is current with all fees due to CKSS and has provided CKSS with advance Notice that includes the transferee’s written consent that it agrees to all of the terms and conditions of this Agreement. Only upon such action will Licensee’s obligations as to the License terminate. 6.2 If the License is terminated for any reason by either Party, Licensee is prohibited from transferring the Licensed Product to anyone. Section 7 - Limited Warranty 7.1 CKSS warrants (a) for one year that portion of the DFARS Toolkit licensed by Licensee will enable Licensee to comply with the then current applicable DFARS requirements in effect as of the Effective Date of this Agreement; and (b) that it has all the necessary rights, licenses or permissions to grant Licensee the rights hereunder. 7.2 This warranty applies only to the unmodified portion of the P licensed to Licensee. Section 8 – Exclusions from Limited Warranty 8.1 THESE WARRANTIES ARE LICENSEE’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. SOME STATES OR 5
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. 8.2 THE LICENSED PRODUCT IS PROVIDED IN ITS AS IS CONDITION. ANY USE OF THE LICENSED PRODUCT, UPDATES OR UPGRADES BY LICENSEE IS AT LICENSEE’S OWN RISK. CKSS DOES NOT WARRANT THAT THE LICENSED PRODUCT SHALL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PRODUCT SHALL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS SHALL BE CORRECTED. 8.3 THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION. 8.4 THE WARRANTIES IN THIS SECTION 8 (WARRANTY AND EXCLUSIONS) ARE PROVIDED SOLELY BY CKSS. 8.5 UNDER NO CIRCUMSTANCES IS CKSS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: (A) LOSS OF, OR DAMAGE TO DATA; (B) SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; (C) OR LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. 8.6 THE EXCLUSIVE REMEDY OF LICENSEE AGAINST CKSS FOR BREACH OF ANY OF THE FOREGOING WARRANTIES IS TO SEEK REPLACEMENT OF THE LICENSED PRODUCT, AS SUCH MAY HAVE BEEN UPDATED.
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8.7 Except as expressly required by law without the possibility of contractual waiver, Licensee and CKSS intend that the limitation of liability in this Limitation of Liability section applies to damages caused by all types of claims and causes of action. If any limitation on or exclusion from liability in this section is held by a court of competent jurisdiction to be unenforceable with respect to a particular claim or cause of action, the parties intend that it nonetheless apply to the maximum extent permitted by applicable law to all other claims and causes of action.
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Section 9 - Licensee Warranty and Indemnity 9.1 Licensee is solely responsible for (a) any content and data Licensee makes available to CKSS and (b) the selection and implementation of policies, procedures and controls regarding use, access, security, encryption, results and transmission of content, including any personally-identifiable data, in connection with its use of the Licensed Product. 9.2 Licensee hereby indemnifies and holds harmless CKSS from and against any and all claims, actions, or demands arising from its use of the Licensed Product. Section 10 - General 10.1 In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover all court costs and reasonable attorney fees. 10.2 If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect. 10.3 Licensee agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users. 10.4 Each Party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this Agreement. The Parties will attempt in good faith to resolve all disputes, disagreements, or claims between them relating to this Agreement. 10.5 Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: (a) neither Party will bring a legal action, regardless of form, for any claim arising out of or related to this Agreement more than two years after the cause of 8
action arose; and (b) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse. 10.6 Neither Licensee nor CKSS is responsible for failure to fulfill any obligations under this Agreement due to causes beyond its control. 10.7 No right or cause of action for any third party is created by this Agreement, nor is CKSS responsible for any third-party claims against Licensee. 10.8 In entering into this Agreement, neither Party is relying on any representation not specified in this Agreement, including but not limited to any representation concerning: (a) the performance or function of the Licensed Product, other than as expressly warranted by CKSS in this Agreement; (b) the experiences or recommendations of other parties; or (c) any results or savings that Licensee may achieve. 10.9 Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration that shall be held in the State of Maryland. Each Party shall be responsible for its costs and expenses and will share the costs associated with the hiring of the arbitrators. The arbitration award shall be final and binding for the Parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law. The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. 10.10 The United Nations Convention on Contracts for the International Sale of Goods does not apply.
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10.11 The Parties hereby waive all rights to trial by jury in any claim, action, proceeding or counterclaim by either against the other in any matters arising out of or in any way connected with this Agreement. 10.12 Each party represent and warrants that the person executing this Agreement on its behalf has the requisite authority to do so which is not subject to any further ratification or approval. 10.13 No amendment to or modification of this Agreement shall be effective unless in writing and signed by the Party against whom the amendment or modification is sought to be enforced. No waiver of any term or condition of this Agreement shall be construed as a waiver of any other term or condition. Failure of either Party to demand strict enforcement of any term or provision of this Agreement shall not be deemed a continuing waiver or otherwise impair or impede such Party’s ability to demand strict enforcement of such term or provision of this Agreement at a later date. 10.14 CKSS may assign or otherwise transfer its rights and responsibilities under this Agreement. Licensee may not assign its rights and responsibilities under this Agreement. Licensee may transfer it rights and responsibilities in accordance with this Agreement. Any attempt by Licensee to assign its right or obligations shall be null and void. This Agreement shall be binding upon the Parties’ respective authorized successors and assigns. 10.15 The Parties recognize that irreparable injury will result from a breach of any provision of this Agreement and that money damages will be inadequate to fully remedy such injury. Accordingly, in the event of a breach or threatened breach of one or more of the provisions of this Agreement, any Party who may be injured shall be entitled to seek without posting any bond, in addition to any other remedies which may be available to that Party, one or more preliminary or permanent orders (a) restraining and enjoining any act which would constitute a breach or (b) compelling the performance of any obligation which, if not performed, would constitute a breach. 10
10.16 All Notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent:
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SCHEDULE 1 FEES The Fees listed are CKSS’s current charges for the Licensed Product. CKSS in its absolute discretion may change the Fees. Such will be considered an amendment to this Agreement. Any then current Licensee will receive at least 30 days advanced Notice of the Fee change and an opportunity to Accept or Reject the Fee change. If Licensee does not Accept the Fee change by means of the method provided within 5 days of its receipt of the Notice, Licensee will be deemed to have rejected the change resulting in the Termination of the License effective 30 days thereafter.
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