ControlUp End User License Agreement

End User License Agreement

IMPORTANT – READ CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE (THE “SOFTWARE”).

This End-User License Agreement (“EULA” or “Agreement“) is a binding legal agreement between you (“You“) and Smart-X Software Solutions Ltd. (the “Company” or “Smart-X”) which sets forth the terms and conditions under which you are licensed to use the Software that has developed and owns by the company and being distributed with this EULA.

BY CLICKING ON THE “I ACCEPT” BUTTON, OR BY INSTALLING, COPYING OR KEEP ON USING THE SOFTWARE, YOU DECLARE THAT YOU HAVE CAREFULLY READ AND UNDERSTOOD THE TERMS OF THIS EULA AND AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS EULA, INCLUDING THOSE INCORPORATED BY REFERENCE. IF YOU SELECT “I DO NOT ACCEPT” THE INSTALLATION PROCESS WILL NOT PROCEED. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL, COPY OR USE THE SOFTWARE.

FURTHERMORE, BY ACCEPTING THE TERMS OF THIS EULA, (1) YOU HEREBY WAIVE, IRROVACABLY, ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AND (2) YOU HERE BY ACKNOWLEDGE THAT YOU ARE FAMILIAR WITH AND AGREE TO THE TERMS OF THE SOFTWARE’S PRIVACY POLICY AVAILABLE AT http://www.smart-x.com/products/controlup/controlup-privacy-policy/ , WHICH IS INCORPORATED AS AN INTEGRAL PART OF THIS EULA.

IF YOU ARE NOT THE END USER AND ARE INSTALLING THIS SOFTWARE ON BEHALF OF THE END USER, YOU WARRANT AND REPRESENT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF THE END USER AND TO ACCEPT AND BIND THE END USER TO THE TERMS OF THIS EULA.

1. Definitions

1.1. “We” or “Us” or “Smart-X” or “Our” or the “Company” refers to Smart-X Software Solutions Ltd. an Israeli limited liability company, having its main place of business at 12 Hamelacha Street, P.O.Box 1122, Lod, Israel, 71100.1.2. “You” and “Your” refers to the entity and/or individual person consenting to, and entering into, this Agreement.

1.3. “Software” refers to the software, in object code format, made available to You together with this EULA, including the Main Console and Agents ,in addition to but not limited to (i) third party`s software incorporated therein; (ii) related explanatory written materials (“Documentation“); and (iii), any patches, updates, modified versions, additions, service packs and upgrades, if any, which may be provided by the Company from time to time (“Updates & Upgrades“).

1.4. “License Program” refers to a certain combination, marked and chosen by you in the Registration Form.

1.5. “Support Services” refers to those support services available at http://www.smart-x.com/support/support-statement/

1.6. “Annual License Fee” refers to the respective amounts payable to Smart-X per one year of use of the Software in accordance with the relevant License Program.

1.7. “Monthly License Fee” refers to the respective amounts payable to Smart-X per one month of use of the Software in accordance with the relevant License Program.

1.8. “Main Console” refers to the IT Management system, known as “Smart-X ControlUp” in the edition stipulated in the License Program You subscribed for, while installed on your Server.

1.9. “Agent” refers to any piece of software code We provide you (deployed from the installation package installed with the Main Console), and is installed on all, selected, or none, of Your End Points.

1.10. “Our Servers” refers to severs belonging to Us and/or third party hosting service providers we use.

1.11. “End Point” refers to each hardware or virtualized based station monitored by the Main Console under the terms of this EULA, including, without limitation, personal computers, laptops, terminal services, VDI, servers, screens etc.

1.12. “Server” refers to a single piece of hardware enabling the installation of the Main System on its storage device and the operation there from.

1.13. “ControlUp User Account” refers to each instance of a unique username and password enabling authenticated access to the Main Console.

1.14. “User/s” refers to You and any individual assigned for a ControlUp User Account.

1.15. “Concurrent Sessions” refers to the number of sessions currently established on all of your End Points. The total sessions count is a sum of user sessions and system (services) sessions. On Terminal Servers every user session is count as a single session. A workstation consumes one session, whenever a user is logged on to it. Each server of any other kind (DC, Exchange, SQL, File Servers, etc.) consumes 5 Concurrent sessions, even if no users are currently logged on to it.

1.16. “Registration Form” refers to the form you filled in the registration process where you stipulate the License Program you desire, and further details.

1.17. “Offline Activation File” refers to a file which will be received by You and uploaded by you to your server, which holds, inter alia, the details of you License Program as approved by us, and further details. And allow the Main Console to operate without connection to Our Servers

1.18. “Offline Mode” refers to an operation of the Main Console where ControlUp configuration data and statistics are stored solely within Your Local Area Network and are never sent to Our servers.

1.19. “Online Mode” refers to an operation of the Main Console where certain login configuration and licensing information resides on Our Servers and where the Main Console securely communicates with Our Servers exchanging information as defined below.

2. The License

Subject to your full compliance with the terms and conditions set forth in this EULA, the Company hereby grants you a limited, non-exclusive, non-transferable internal license to:

(a) Download, install and use a copy of the Main Console on one or more PC’s or Servers within your organization;(b) Download, install and use that certain amount of Agents on that certain amount of End Points within your organization up to the amount you ordered and paid for, as reflected in the License Program you subscribed for. The Agents may be installed by you solely on End Points and or servers located at your principal place of business and may not be transferred outside such premises.

(c) Assign such number of ControlUp User Accounts up to the amount you ordered and paid for, as reflected in the License Program

3. Intellectual Property Rights

3.1. The Software, in whole or in part, as well as any extracts or output that you make using the Software (collectively “the Protected Material“), are owned solely by Smart-X, and its structure, organization and code are the valuable trade secrets of Smart-X. You shall not physically receive, under no circumstances, any source code in connection to any software included in the Protected Material. The Protected Material is also protected by Israeli Copyright Law and International Treaty provisions3.2. You obliged not to copy, modify, adapt, translate or make derivative works based upon the Protected Material, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software.

3.3. “Smart-X” and “ControlUp” are trademarks of Smart-X. No right, license, or interest to such trademarks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to such trademarks. Use of any of these marks without the prior written permission of Smart-X is strictly prohibited. Use of any of these marks without the prior written permission of the mark’s owners is strictly prohibited.

3.4. All other trademarks, service marks, product names and company names or logos, if any, cited herein, directly or by reference, are the properties of their respective owners. Use of any of these marks without the prior written permission of the mark’s owners is strictly prohibited.

4. Your Responsibilities, Restrictions and Obligations

4.1. You are solely responsible:

4.1.1. For selecting a qualified ControlUp Users for the Main Console who is familiar with the information, calculations, and reports that serve as input and output of the End Points and the Main Console.4.1.2. For all activity occurring with the use of the Software provided to You, whether such activity is made under one of Your ControlUp User Accounts, even, without limitation, if such do not form part of Your organization, and just provide services to You.

4.1.3. For using the Software only for lawful purposes. Accordingly, you shall not do anything that encourages conduct which would constitute a criminal offense or which encourages or may encourage “hacking” or “cracking,” or which gives rise to civil liability or otherwise violate any applicable local or international law.

4.1.4. For obtaining or providing, at Your sole expense, all telephone, internet service and/or leased or dedicated access lines, telephone and computer equipment, including connection equipment and modems and any other hardware or software necessary to enable the operation of the Software. You understand and acknowledge that We will not be liable for network-related problems attributable to the operation of the Software and that internet and network configuration changes may affect the Software’ performance and accessibility.

4.1.5 Note – use of the Software may require one or more compatible devices, Internet access, and certain software, and may require obtaining updates or upgrades from time to time. Because use of the Software involves hardware, software, and Internet access, your ability to use the Software may be affected by the performance of these factors. You acknowledge and agree that such system requirements, which may be changed from time to time, are on your responsibility

4.2. Your responsibility includes compliance with all applicable local, state, national and foreign laws, treaties and regulations relating to Your, and Your Users’ use of the Software, including those related to the protection of intellectual property, data privacy, international communications and the transmission of technical or personal data. Furthermore, You shall notify Us immediately of any unauthorized use of any password or account or any other known or suspected breach of security, and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by you.

4.3. The following restrictions shall apply to Your use of the Software:

4.3.1. You may not license the Software if You are a competitor of Smart-X, except with Smart-X prior written consent. In addition, You may not license the Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes and not access the Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Software, or (c) copy any ideas, features, functions or graphics of the Software.4.3.2. You may not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party, the Software in any way; (ii) create Internet “links” to the Software or “frame” or “mirror” any content thereof on any other server, wireless or Internet-based device.

4.3.3. You may not, in the course of Your use of the Software (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene (including pornography, violence, terror, etc.), threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or volatile of third party privacy rights; (iii) send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to the Software or its related systems or networks; (vi) violate or cause Smart-X to violate applicable law; or (vii) use the Software other than for your reasonable internal business purposes. Furthermore, You acknowledge that We assume no responsibility for monitoring your use of the Software for inappropriate content or conduct.

5. Warranties, Limitation Of Liability, Indemnification

5.1. THE SOFTWARE MAY CONTAIN ERRORS, BUGS AND OTHER PROBLEMS WHICH COULD CAUSE SYSTEM CRASH OR FAILURE. THE COMPANY RESERVES THE RIGHT TO ALTER THE SOFTWARE AT ANY TIME, AND ANY RELIANCE ON THE SOFTWARE OR ITS QUALITY OR PERFORMANCE IS AT YOUR SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT THE SOFTWARE IS PROVIDED TO YOU ON AN “AS-IS” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WRRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY SMART-X, ITS OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, LICENSORS, CONTRACTORS OR THE LIKE (“ANYONE ON ITS BEHALF”) SHALL CREATE OR CONSTITUTE ANY FORM OF WARRANTY. ACCORDINGLY, YOU AGREE THAT THE USE OF THE SOFTWARE IS AT YOUR SOLE RISK, AND THAT NEITHER SMART-X NOR ANYONE ON ITS BEHALF, DO NOT AND CAN NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE NOR THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR MEET ANY REQUIREMENTS.5.2. UNDER NO EVENT SHALL SMART-X BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,OR EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SMART-X HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA GENERATED IN CONECTION WITH THE SOFTWARE; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY GENERATED IN CONECTION WITH THE SOFTWARE; OR (v) ANY OTHER MATTER RELATING TO THE SOFTWARE.

You may, however, have additional rights under certain laws that do not allow the exclusion of implied warranties, or the exclusion or limitation of certain damages. If such laws apply, our exclusions or limitations shall apply to the fullest extent provided by the applicable laws.

5.3. NEITHER SMART-X NOR ANYONE ON ITS BEHALF NOR ANYONE ELSE INVOLVED IN CREATING, PRODUCING, MARKETING OR DISTRIBUTING THE SOFTWARE, SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM USE OF OR INABILITY TO USE THE SOFTWARE DUE TO ANY CAUSE WHATSOEVER, INCLUDING ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SYSAID’S RECORDS OR THE SOFTWARE.

5.4. IN NO EVENT SHALL THE ENTIRE LIABILITY OF SMART-X AND ANYONE ON ITS BEHALF FOR ALL DAMAGES, LOSSES, CLAIMS AND COSTS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID BY YOU TO SMART-X DURING THE IMMEDIATELY PRECEDING 1 YEAR PERIOD.

5.5. You are solely responsible for your actions when using the Software, and therefore, notwithstanding the above, You shall indemnify, defend, and hold harmless Smart-X, its directors, officers, employees and agents and their respective successors, heirs and assigns (the “Smart-X Indemnities”), against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon any of the Smart-X Indemnities in connection with any claims, suits, actions, demands or judgments (“Claims”) arising out of any alleged liability (including without limitation actions in the form of tort, warranty, or strict liability and regardless of whether such action has any factual basis) concerning any act or omission of You, and/or individuals assigned with an Administrator User Account all (a) in connection with the Software; or (b) which are in breach of any applicable law; or (c)which constitutes a breach of this Agreement; (d)which are in violation of any rights of any third party.

6. Confidentiality And Privacy

6.1. This Agreement is subject to the Privacy Policy of Smart-X’s ControlUp which is set forth on Our website http://www.smart-x.com/products/controlup/controlup-privacy-policy/ and constitutes an integral part of this Agreement and you declare that you read it before the use of the software.6.2. You agree that We may list You as a customer and reproduce Your logo and registered trademark online or in printed materials solely to indicate that You are or were a licensee or user of the Software, unless and until You provide US a written notice stated that you refuse for such publicity

7. Fees And Payments

7.1. Smart-X licenses ControlUp Software under several License Programs:
(1)A Basic Program which is Free and includes a limited amount of Concurrent Sessions
(2) Paid Programs which are subject to payments in accordance with the configuration You subscribed for, as reflected in the License Program and maintained on Our Servers and/or in the Offline Activation File.7.2. In case Your use of the Software is other then at a Basic Program the following conditions shall apply:

7.2.1. Your license to use the Software is subject, inter alia, to the full and accurate payment, in its due date of the relevant Annual / Monthly License Fee. The Annual / Monthly License Fee shall be paid to Smart-X in advance for every year / month you subscribe for the license and shall be non-refundable even if You stop using the Software before the expiration of the Term for any reason.7.2.2. You shall provide Smart-X with complete and accurate billing and contact information. This information includes Your legal company/organization name (if applicable), street address, telephone number, fax number (if applicable), e-mail address, and name of an authorized billing contact. You agree to update this information within 30 days of any change. If the contact information You have provided is false or fraudulent, Smart-X reserves, without derogating from other remedies available to it under applicable law, or this EULA, to terminate this EULA.

7.2.3. You are solely responsible for payment of any taxes applicable by any law, resulting from your acceptance of this EULA and\or your use of the Software, exclusive of taxes based on Smart-X income. You agree to hold Smart-X harmless from all claims and liability arising from your failure to report or pay such taxes.

7.2.4. In case of termination of this EULA, for whatever reason, You agree that We may charge Your credit card or any other means of payment provided by You to Smart-X, with any unpaid fees, or any other outstanding payment obligation You have with Us.

8. Term, Termination and Effect of Termination

8.1. This Agreement shall become effective as of Your indication of acceptance of its terms by checking the “I Accept” box, as indicated above, and shall maintain in effect as follows:

8.1.1. If You subscribed for a Basic Program – for an unlimited period of time, for as long as you keep using the Software within the Basic Program terms, subject to Our right to terminate this Agreement, at any time, for any reason by providing you with 30 (thirty) days prior written notice, or with immediate effect under section 8.4 below.8.1.2. If You subscribed for a Paid Program – for a period of one (1) year / month thereafter (“Initial Term“). The term of the Agreement can be extended beyond the Initial Term for consecutive periods of one (1) year / month each (“Extended Term“) by paying Us in 30 days advance the Annual / Monthly License Fee attributed to the Extended Term (each of the Initial Term and any Extended Term shall be referred to herein above and below: the “Term“).

8.2. During each Term of this Agreement, Both You and Us may terminate this Agreement, at any time, for any reason (“Termination for Convenience“) by providing the other party – in your case with 30 (thirty) days prior written notice, and in our case with 60 (sixty) days prior written notice.

8.3. In case of Termination for Convenience made by Us, You shall be entitled to receive, as exclusive remedy, a refund equal to the proportional portion of the Annual License Fee already paid to Us for the current Term. In case of Termination for Convenience made by You, You shall not be entitled to any refund whatsoever.

8.4. Without derogating from Our right to exercise Termination for Convenience, We shall also be entitled to terminate this Agreement by a written notice with immediate effect in the following events (“Termination for Cause“):

8.4.1. If you are in breach of any of Your obligations under this Agreement and did not cure such breach within 7 days of receiving a written notice specifying such breach.8.4.2. If any, current of future, governmental (national, state or local) regulations prevent the continuation of the provision of Our Services to You under this Agreement.

8.5. Upon termination of this Agreement, for any reason whatsoever, the following terms shall apply:

8.5.1. All rights granted to you, shall terminate automatically without You being entitled to receive any payment or refund of any fee paid by You (unless specifically expressed otherwise in this Agreement).8.5.2. You shall remove and destroy any copies of the Software installed by You, and/or anyone on your behalf.

9. Support & Maintenance

9.1. Smart-X DOES NOT offer charge free support and/or maintenance services, unless and in as much as specifically included in the License Program You subscribed for, and You may not assume any kind of such undertaking on behalf of Smart-X. Nevertheless, if chooses to do so in its sole discretion, Smart-X may, from time to time, upgrade the Software to newer versions released, and if done so, Smart-X will not be under obligation to retain any previous releases of the Software.9.2. Smart-X may decide, however, from time to time, in its sole discretion, to provide You with Support Services, in whole, in part or in any other level, even if You subscribed for a Basic Program, and is also free to cease providing such Support Services without notice, and without You being eligible for any compensation for such cessation.

10. Miscellaneous

10.1. Enforceability. In the event that any provision of this Agreement is invalid or unenforceable under any law, such provision shall be totally ineffective to that extent, but the remaining provisions of this Agreement will be unaffected.10.2. No Waiver. No delay or omission on the part of SMART-Xin exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on any one occasion shall not be construed as a bar to or a waiver of any right on any future occasion.

10.3. Governing Law. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of Israel, without reference to conflict of laws principles. Without derogating from the generality of the above, the United Nations Convention on Contracts for The International Sale of Goods shall not apply on this Agreement. You hereby irrevocably subject yourself to the exclusive jurisdiction of the courts located in the district of Tel-Aviv, Israel in connection with any action or controversy relating to the Software, or this Agreement.

10.4. Notices. Any Notice to be given pursuant to this Agreement shall be sent by You to Us via Registered Mail to the address stipulated in section 1.1 above, or via e-mail to the following E-mail Support@smart-x.com, and shall be deemed received by Us- if sent via Registered Mail – 7 business days after being sent, and if sent via e-mail – 2 business days after you get confirmation it has been received by Us. Any Notice to be given to You shall be made via Registered Mail or Email address, to the address and E-mail You filled in the Registration Form, and shall be deemed received by You- if sent via Registered Mail – 7 business days after being sent, and if sent via e-mail – 2 business days after being sent.

10.5. Whole Agreement. This Agreement, including the provisions Incorporated by reference, constitutes the sole and entire agreement with respect to Our provision of Services to You.

10.6. Modifications. SMART-X may change the terms of this EULA, from time to time, by posting a modified copy of this EULA on Our website, or by otherwise notifying You. Those changes will be effective and binding as of posting of the notice; unless a different effective date is specified. We therefore recommend you to enter, from time to time, to our website in order to review information concerning such modifications. YOUR CONTINUED USE OF THE SOFTWARE FOLLOWING DELIVERY AND/OR POSTING OF A NOTICE OF MODIFICATION SHALL BE CONCLUSIVELY DEEMED AN ACCEPTANCE OF SUCH MODIFICATION. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU MUST TERMINATE THIS EULA IMMEDIATELY, AND NOTIFY US IMMEDIATELY SO THAT A TERMINATION OF YOUR LICENSE MAY BE PROCESSED, AND SUCH TERMINATION IS YOUR ONLY RECOURSE.

10.7. Long term License. In case you hold a license which enables you to use the Software perpetually but you were not subscribed for Support Services constantly since you acquired such license than you are permitted to use the software only in its last release as it was issued by us when you acquired such license, and subject to the terms and conditions of this EULA, without being eligible for Support Services and/or Updates & Upgrades. If you want to get Support Services and/or Updates & Upgrades you will have to enter into one of the current License Programs, or get to any other special arrangement with Us.

10.8. Assignment. Your rights and obligations under this Agreement may not be assigned or transferred in any other way, by operation of law or otherwise without prior written consent of Smart-X.

Last updated: Febuary 2013.