Terms of Service

1. Grant of Rights. Subject to the terms and conditions of this Agreement, during the Term Cogility (a) hereby grants to Customer a restricted, non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable right to use, during the term of this Agreement and in accordance with the documentation provided by Cogility, the Materials (the “License”), and (b) will make the Cogility Services available to you.  “Cogility Services” shall mean Cogility’s TacitRed hosted services and any related support services made available by Cogility to Customer in connection with the Materials and in accordance with the Order, and any Add-Ons, as may be adjusted in accordance with Section 2.  Notwithstanding anything to the contrary, the Cogility Services are provided to you on a subscription basis, and the Materials are provided to you under a limited license, and neither has been sold to you. Under no circumstances will you be deemed to receive, have, or be granted title to all or any portion of the Cogility Services or Materials (including without limitation any Intellectual Property Rights therein), title to which at all times vests exclusively in Cogility.  Customer acknowledges and agrees that, unless otherwise agreed in writing between the Parties, Customer shall be solely responsible for procuring and complying with any license or right to use any Third Party Services.
2. Restrictions. Without Cogility’s prior written consent, Customer shall not: (a) copy the Materials or Cogility Services, or any portion thereof; (b) decompile, disassemble, scrape or otherwise reverse engineer the Materials or Cogility Services, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in the Materials or used in the Cogility Services, or any portion thereof; (c)  create any Derivative Works of or based on the Materials or Cogility Services; (d) unless otherwise expressly permitted in the Order, make, use, or offer the Cogility Services, Materials or any data or other output from the use thereof, for lease, rent, or sale, or reproduce, resell, distribute, publish, display, assign, transfer, sublicense, lend, use on a timeshare or service bureau basis; (e) engage in any activity that interferes, disrupts, damages, or accesses in an unauthorized manner the Cogility Services or any servers, networks, systems, products, or other properties or services of Cogility or any third party; (f) remove or alter any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in copies of the Materials or the Cogility Services, or related documentation; (g) perform, publish, or otherwise disclose the results of, evaluation, benchmark tests, or other comparisons of the Materials or Cogility Services with other programs or services; (h) transfer the Materials or Cogility Services generated data, either manually or through an Application Programing Interface (API) in accordance with the Order and as provided through Cogility Services, to any computer other than a computer owned or controlled by Customer and used by Customer in Customer’s operations; (i) permit the Materials or Cogility Services to be used for processing the data of any third party; (j) incorporate the Materials or Cogility Services or any portion thereof into any other program, product or service, or use the Materials or Cogility Services to provide similar services or functionality to third parties; (k) provide any third party with access to the Cogility Services other than as expressly permitted herein; (l) distribute or resell the Materials or Cogility Services for any purpose; (m) use the Materials or Cogility Services or the data generated by Cogility Services for any unlawful or tortious purpose or to conduct or influence others to conduct malicious or unlawful activities using the data provided in Cogility Services; (n) use the Cogility Services to transmit any viruses, worms, time bombs, Trojan horses or any other harmful or malicious code; and (o) use the Materials or Cogility Services for any purpose other than in accordance with the terms and conditions of this Agreement.  Customer also agrees that it (p) will access and use the Cogility Services and Materials only for purposes that are permitted by any applicable laws and generally accepted practices or guidelines in the relevant jurisdictions; (q) will not engage in any activity in connection with the Cogility Services and Materials that infringes or misappropriates any intellectual property rights of a third party; and (r) is responsible for procuring, installing and maintaining all hardware and software required to access and use the Cogility Services (other than the Materials). Customer shall ensure that all Customer Users of the Cogility Services and Materials comply with the terms and conditions of this Agreement. Customer shall be responsible for compliance with this Agreement by each Customer User and it shall monitor and manage all Customer Users in connection with this Agreement.
3. Fees; Payment. In consideration of the Cogility’s provision of the Cogility Services and Materials, Customer shall make payments to Cogility in accordance with the terms set forth in the Order or applicable invoice. Customer shall pay such invoiced amounts within the date specified in the Order or the applicable invoice.  Customer shall pay such invoiced amounts within thirty (30) days of the date of the applicable invoice.  Customer agrees to pay a late fee in an amount equal to one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less) for all amounts not paid within thirty (30) days from the date of the invoice therefor.  All fees payable under this Agreement shall be made without deduction or set-off.  In the event that Customer in good faith disputes all or any portion of the fees set out in any such invoice, Customer shall notify Cogility in writing of such dispute on or prior to due payment due date with specific details sufficient to identify the amounts in dispute, and the Parties shall thereafter promptly attempt in good faith to resolve such dispute. Failure to notify Cogility of a fee dispute in accordance with the foregoing bars Customer from disputing such Invoice.  Cogility will invoice the Customer for Cogility Services and Materials on an annual or multi-year subscription basis as set forth in the Order. During the Term, by amending its Order with mutual agreement of the Parties, the Customer can elect to step up its subscription to a Product Edition or add Add-Ons to its subscription, that provide more features than its then-current subscription.  In that event, Cogility will invoice Customer an amount equivalent to the subscription fee of the new subscription package of the Product Edition and/or Add-Ons for the remaining months of the Term and the new subscription package will be subject to this Agreement including renewal under Section 9.1. During the Term, the Customer is not permitted to select a subscription package that is for a Product Edition that provides for fewer features, fewer Add-Ons, or a lower subscription fee than the subscription package set forth in the Order (as it may step up in accordance with this Section 1.3).
4. Taxes. All fees charged under this Agreement are exclusive of sales, use, excise and other taxes and duties that may be levied upon either Party in connection with this Agreement.
5. Product Edition Functionality and Add-Ons. Customer’s subscription shall cover the Materials and Cogility Services with respect to the Product Edition as set forth in the Order.  The “Product Edition” refers to the scope of features and functionality of the Cogility Services and Materials as further defined in the Materials and on the Cogility website (see Pricing Page), and may be periodically amended by Cogility.  During the Term, the Customer can add-on additional features as made available by Cogility in a Product Edition (“Add-Ons”). Add-Ons may include but are not limited to the number of assigned users, the number of first-party entities, and the number of third-party entities. Product Edition Add-ons will be set forth in the Order and may be increased (but not decreased) in accordance with Section 1.3.
6. Evaluation. Subject to all other terms and conditions of this Agreement, Cogility may make the Cogility Service and Materials available to a Customer for purposes of evaluation without a subscription fee (“Evaluation Customer”). The length of the evaluation period (“Evaluation Period”) shall commence on execution of an Order providing for such evaluation and ending on the first to occur of:  (a) 30 days after the date of the Order or such other date as the Parties may specify in the Order for such evaluation use, (b) the start date of any subscription for production use which shall be stated in an Order, or (c) termination of the Evaluation Period by Cogility with or without cause in its sole discretion upon written notice to the evaluation Customer.  During the Evaluation Period, (i) Cogility will not be obligated to provide the evaluation Customer any Technical Support, and (ii) any data that the evaluation Customer enters in the Cogility Service, data generated within the Cogility Service, and the Customer User account will not be accessible and may not be retained by Cogility at the end of the Evaluation Period.
7. Customer Acknowledgments. Customer acknowledges and agrees that (a) Cogility has the right to manage the Cogility Services to protect the rights and property of Cogility and others and to facilitate the proper functioning of the Cogility Services, including disabling Customer User accounts; and (b) the Cogility Services may be inaccessible from time to time due to planned or unplanned maintenance, or due to unavailability of third-party sites or services. Customer further acknowledges that Cogility reserves the right, in its sole discretion, to make any changes to the Cogility Services and Materials that it deems necessary or useful, provided, that any such changes will not materially diminish the features or functionality of the Cogility Services or Materials.

1. General. As between Cogility and Customer, Cogility retains all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Materials and Cogility Services, and any portion thereof, including, without limitation, any copy or Derivative Work of the Materials, Cogility Services or any portion thereof and any Update thereto. Customer agrees to take any action reasonably requested by Cogility to evidence, maintain, enforce or defend the foregoing.  Customer shall not take any action to jeopardize, limit or interfere in any manner with Cogility’s ownership of and rights with respect to the Materials, Cogility Services or any Derivative Work or Update.  Customer shall have only those rights in or to the Materials, Cogility Services and any Derivative Work or Update expressly granted to it pursuant to this Agreement.  All other rights in and to the Materials and Cogility Services (including, for clarity, any Derivative Work and Update thereof) are reserved by Cogility. Customer hereby unconditionally and irrevocably grants to Cogility an assignment of all right, title, and interest in and to the Usage Data, including all Intellectual Property Rights relating thereto.  “Usage Data” means data and information related to Customer's use of the Cogility Services that is used by Cogility in an aggregate and anonymized manner, including without limitation to compile statistical and performance information related to the provision, operation and/or improvement of the Cogility Services and for any other lawful purposes.
2. AI Features. As set forth in Section 4.2, Customer owns all Customer Content.  Customer shall also own the output generated from the Cogility Services from Customer’s Customer Content (which Customer acknowledges may be similar to output generated for other customers using the Cogility Services).  Cogility Services may include features or functions that use artificial intelligence, including without limitation generative artificial intelligence, machine learning, and other modes of artificial intelligence now existing or developed in the future (“AI Features”).   Customer is entirely and solely responsible for (a) its Customer Content; and (b) review and analysis of output (including without limitation with human review or oversight, as appropriate) for “hallucinations,” suitability and accuracy.  Customer (and not Cogility) is responsible for the use of and any actions taken in relation to output generated by the Cogility Services.   Customer Content and its use by Cogility in accordance with this Agreement may also result in or enable Cogility to enhance, calibrate, train, test, optimize, develop, improve, and otherwise make Derivative Works or Updates of Cogility Services (including without limitation the AI Features thereof), all of which shall be owned by Cogility pursuant to Section 3.1.
3. Feedback.  Customer (including without limitation Customer’s Users) may provide suggestions, requests, recommendations and other feedback concerning Customer’s use of the Materials and Cogility Services (including, without limitation, any errors or difficulties discovered with respect thereto, features or functionality relating thereto, and comments, questions, suggestions relating, or in connection with technical support or evaluation ) (the “Feedback”).  Customer agrees that all Feedback shall be the sole property of (and hereby assigns all of its right, title and interest in Feedback to) Cogility and Cogility may use such Feedback at its discretion without the consent of Customer, and without attribution or compensation to Customer or any User.

1. Acknowledgements. Customer acknowledges that Cogility does not monitor Customer Content or the content third parties create and/or transmit using the Cogility Services.
2. Proprietary Rights. As between Cogility and Customer, Customer retains all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Customer Content and any portion thereof.  Customer hereby grants to Cogility a worldwide, non-exclusive, transferable, sublicensable, royalty-free, perpetual, irrevocable right and license to use, reproduce, distribute, adapt, transmit, publicly display and publicly perform Customer Content (a) for the purposes of (i) providing the Cogility Services and Materials and performing its obligations hereunder, and (ii) enhancing, calibrating, training, testing, optimizing, developing, improving, and otherwise making Derivative Works of Cogility Services and Materials (including without limitation the AI Features thereof), and (b) for any other purposes permitted under this Agreement or the Privacy Policy.

1. Proprietary Information. The Parties acknowledge that, in the course of this Agreement each may obtain or learn confidential or proprietary information of the other Party whether orally or in written, electronic, or other form or media and whether or not identified as confidential (“Proprietary Information”). “Proprietary Information” will include, without limitation, (a) the terms of the Order, (b) Intellectual Property Rights, including without limitation, know-how, inventions (whether or not patentable), techniques, processes, programs (whether in source code or object code form), ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, documentation, design and functional specifications, product requirements, problem reports, performance information, software documents, hardware, devices, designs, drawings, unpublished patent applications, data, plans, strategies and forecasts, and (c) technical, engineering, manufacturing, product, marketing, servicing, financial, personnel and other information.  Cogility’s “Proprietary Information” will include, without limitation, the Materials (including all Derivative Works and Updates) and all confidential information related thereto provided or made available by Cogility to Customer in connection with this Agreement.  Cogility’s Proprietary Information (and all Intellectual Property Rights therein) shall, as between Customer and Cogility, belong solely to Cogility, and Customer’s Proprietary Information (and all Intellectual Property Rights therein, subject to the terms of this Agreement) shall, as between Customer and Cogility, belong solely to Customer.
2. Use and Disclosure Restrictions. Each Party agrees (a) to protect the other Party’s Proprietary Information from unauthorized dissemination and use using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (b) to use the other Party’s Proprietary Information only for the performance of this Agreement and the exercise of any rights under this Agreement; (c) not to disclose any Proprietary Information, or any part or parts thereof, to any of its employees, agents, contractors or any other individuals except to its employees have a need to know and who are under confidentiality and limited use obligations no less restrictive than the requirements of this Section 5; (d) with respect to Customer, not to disclose or otherwise provide to any third party, without the prior written consent of Cogility or as otherwise set forth in a separate written agreement between the Parties hereto entered into after the date hereof, as applicable, any of Cogility’s Proprietary Information, including, without limitation, the terms of the Order and the existence and possible applications of the Materials and Cogility Services; (e) to undertake whatever action is necessary (or authorize the other Party to do so in the name of such Party) to prevent or remedy any breach of such Party’s confidentiality and limited use obligations herein set forth or any other unauthorized disclosure of any Proprietary Information by its current or former employees, agents or contractors; and (f) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Proprietary Information provided to such Party by the other Party.   Each Party shall ensure that its employees, independent contractors and agents comply with the requirements of this Section 5 and shall be responsible and liable for any non-compliance to the same extent as if such Party itself failed to comply.
3. Exclusions.  The foregoing restrictions on disclosure and use shall not apply with respect to any Proprietary Information that: (a) is or becomes publicly known through no act or omission of the other Party; (b) was rightfully known by the receiving Party without confidential or proprietary restriction before receipt from the other Party, as evidenced by the receiving Party’s  contemporaneous written records; (c) becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party that does not owe a duty of confidentiality with respect to such Proprietary Information; or (d) is independently developed without the use of the Proprietary Information as evidenced by the receiving Party’s written records.  In addition, a Party may (i) use or disclose the other Party’s Proprietary Information to the extent approved in writing by the other Party and (ii) disclose Proprietary Information that a Party is legally compelled to disclose, provided, however, that prior to any such compelled disclosure, such Party shall cooperate fully with the other Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Proprietary Information.  Further, each Party may disclose the terms and conditions of the Order: (A) in confidence, to legal counsel; (B) in confidence, to accountants, banks, and financing sources and their advisors; and (C) subject to customary confidentiality protections in connection with the enforcement of this Agreement or any rights hereunder.
4. Equitable Relief. Each Party agrees that, due to the unique nature of the other Party’s Proprietary Information and Intellectual Property Rights, the unauthorized disclosure or use of the other Party’s Proprietary Information or Intellectual Property Rights, or any other breach of any provision of Sections 3, 4 or this Section 5 will cause irreparable harm and significant injury to the other Party, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law.  Accordingly, each Party agrees that the other Party, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of Sections 3, 4 or this Section 5 without the necessity of posting any bond or other security.  Each Party shall notify the other Party in writing immediately upon becoming aware of any such breach or threatened breach.

FOR THE AVOIDANCE OF DOUBT, COGILITY MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD PARTY MATERIALS.  COGILITY DOES NOT REPRESENT OR IMPLY THAT IT ENDORSES ANY THIRD PARTY MATERIALS, OR THAT IT BELIEVES THE OPERATION OF ANY THIRD PARTY MATERIALS WILL BE ACCURATE, USEFUL OR NON-HARMFUL.  THIRD PARTY MATERIALS MAY HAVE TECHNICAL INACCURACIES, MAY CAUSE MISTAKES OR ERRORS, AND MAY TRANSMIT, STORE, OR OTHERWISE MANIPULATE DATA IN A MANNER THAT IS OBJECTIONABLE TO CUSTOMER. CUSTOMER IS RESPONSIBLE FOR TAKING PRECAUTIONS TO PROTECT ITSELF AND CUSTOMER’S COMPUTER SYSTEMS IN CONNECTION WITH THE USE OF THIRD PARTY MATERIALS.

1. Indemnification Obligation.  Customer shall defend, indemnify and hold Cogility harmless against any loss, liability, damage or cost (including reasonable attorneys’ fees) in connection with claims, actions, demands, suits, or proceedings made or brought against Cogility by a third party (a) alleging (i) that any modification or addition to the Materials or Cogility Services made by or for Customer (other than by Cogility), (ii) that any use of the Materials or Cogility Services in combination with any other product or service not provided, specified or recommended in writing by Cogility for use with the Materials or Cogility Services, infringes any Intellectual Property Right, right of privacy or other right of the third party, or (iii) any act or omission by or on behalf of Customer which, if true, would mean that Customer breached this Agreement; (b) with respect to any Customer Content; or (c) with respect to the development, manufacture, marketing, sales, distribution or use of any of the Materials or Cogility Services, including, without limitation, a product liability claim or a claim for breach of any warranty or support obligations.
2. Procedure.  In connection with a claim under this Section 8, Cogility shall: (i) provide Customer with prompt notice of the claim; (ii) permit Customer to control the defense and any settlement of the claim (provided that Customer may not settle any claim unless such settlement unconditionally releases Cogility of (and provides a covenant not to sue Cogility for) all liability in connection with such claim and no admission of fault); and (iii) provide cooperation as reasonably requested by Customer (at Customer’s expense).  Cogility may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  If Customer fails or refuses to assume control of the defense of such third-party claim, Cogility shall have the right, but no obligation, to defend against such claim, including settling such claim after giving notice to Customer, in each case in such manner and on such terms as Cogility may deem appropriate. Cogility’s failure to perform any obligations under this Section 8.2 will not relieve the Customer of its obligations under this Section 8, except to the extent that the Customer can demonstrate that it has been materially prejudiced as a result of such failure.  Notwithstanding the foregoing, Cogility shall at its option have the right to control the defense and any settlement of claim involving Cogility’s Proprietary Information or Intellectual Property Rights.

1. Term.  This Agreement shall commence on the Effective Date and, unless sooner terminated pursuant to the terms hereof, shall continue in full force and effect for one (1) year or multi-year period as defined in the Order (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive periods equal to the Initial Term (e.g., a one (1) year or the same multi-year period as set forth in the Order) (each a “Renewal Term”), unless either Party provides the other Party with written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current Term. The Renewal Term shall be for the same Product Edition of the Cogility Services and Materials, including without limitation the same payment terms, features, Users and Add-Ons of such Product Edition, subject to changes made in accordance with this Agreement.
2. Termination.  Either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party fails to perform any of its duties or obligations hereunder and, except with respect to Customer’s breach of Sections 1.1, 1.2, 1.3, 3 or 5 (which breach shall not be subject to any cure period), fails to cure such default within thirty (30) days following receipt of written notice from the non-defaulting Party specifying the occurrence or existence of the default.  Customer shall notify Cogility within twenty-four (24) hours of Customer becoming aware of any breach (other than by Cogility) of the terms and conditions of this Agreement, including, without limitation, Sections 1 and 5.
3. Effect of Termination. Upon the expiration or termination of this Agreement, the rights granted to Customer hereunder shall terminate, Customer shall immediately cease all use of the Materials and Cogility Services, return to Cogility or destroy the Materials in its possession, and, upon Cogility’s request, so certify such actions to Cogility.  Any costs incurred in returning or destroying the Materials upon termination shall be borne by Customer.  The provisions of Sections 1.2, 1.3, 3, 4, 5, 6, 7, 8, 9.3, and 10 (and any other provisions that should survive in order to give them full effect) shall survive the expiration or any termination of this Agreement.  Termination of this Agreement by either Party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either Party from any liability for breach of such party’s obligations under this Agreement.  Cogility shall not be liable to Customer for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a Party shall be without prejudice to any other right or remedy of such Party under this Agreement or applicable law.

1. Notices.   We may give notice to you by (i) electronic mail to your email address or the email address of the legal entity specified in the Order, (ii) written communication sent by letter delivered by a nationally recognized overnight delivery service, or (iii) first-class postage prepaid mail. We will use the notice address you provide in the Order as your current email and physical address, unless you advise us in writing of a change in your contact information.  You are responsible for ensuring that your email address and physical address are current, and you agree that any notice sent to the then-current email or property address in our systems is adequate and binding notice upon you. You will provide notice to us (such notice is deemed given when received by Cogility) by letter delivered by a nationally recognized overnight delivery service or certified postage prepaid mail to us at:  Cogility, Inc.,  Attention: Legal Notices,  15495 Sand Canyon Ave., Suite 150, Irvine, CA  92618.
2. Assignment.  This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law or otherwise, by Customer without the prior written consent of Cogility.  Subject to the preceding sentence, the rights and liabilities of the Parties hereto shall bind, and inure to the benefit of, their respective assignees and successors.  Any attempted assignment other than in accordance with this Section 10.2 shall be null and void. Except as may be otherwise expressly provided herein, this Agreement is for the sole benefit of the Parties and does not confer upon any other person or entity any right or remedy. 
3. Governing Law, Jurisdiction and Venue. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the courts of the state and federal courts of Orange County, California.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be commenced in the federal courts or state courts with jurisdiction covering Orange County, California, and each Party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding and waives any objection based on inconvenient forum.  Each Party’s rights and remedies hereunder are cumulative and non-exclusive.
4. Attorneys’ Fees. If any legal action, including, without limitation, an action for injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing Party in any final judgment, or the non-dismissing Party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, and actual attorneys’ fees paid or incurred in good faith.
5. Waiver.  The waiver by either Party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
6. Severability.  If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby; and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.
7. Relationship of the Parties. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the Parties.  Neither Party nor its agents have any authority of any kind to bind the other Party in any respect whatsoever, and the relationship of the Parties is, and at all times shall continue to be, that of independent contractors.
8. Restricted Rights; Export. If Customer is an agency or instrumentality of the United States Government, the Materials are “commercial computer software” and “commercial computer software documentation,” and, pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use reproduction and disclosure of the Materials are governed by the terms of this Agreement.  Customer shall not, directly or indirectly, export, re-export, or release the Cogility Services or Materials to, or make the Cogility Services or Materials accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.
9. Customer Disclosure. You grant Cogility permission and the right to identify you as a customer and to use your logo in Cogility marketing materials (e.g., the Cogility Website, emails, presentations, brochures). Cogility acknowledges and agrees that you retain all right, title and ownership of the Intellectual Property Rights associated with your name and logo (including goodwill).
10. Entire Agreement. This Agreement, your Order, and any Exhibits attached hereto or thereto, and any other Cogility-authored documents or materials hyperlinked or otherwise incorporated by reference herein by reference, constitute the entire agreement between the Parties concerning the subject matter hereof and supersede all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements and communications, whether oral or written, between the Parties relating to the subject matter of this Agreement and all past courses of dealing or industry custom.  Cogility expressly objects to and does not agree to any terms and conditions presented by you that are in addition to or different from those contained in this Agreement. You acknowledge that no terms and conditions presented by you that purport to add to, modify, or vary the terms and conditions of this Agreement will be binding on Cogility, including without limitation (i) text or information set forth on any purchase order, email correspondence, acceptance, invoice or invoice process, or preprinted form, or (ii) terms and conditions of any request for proposal, request for bid, request for information, or questionnaire. In entering into this Agreement, neither you nor Cogility has relied upon any statement, representation, warranty, or agreement of the other Party except to the extent expressly contained in this Agreement.  No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized signatory of each of Cogility and Customer.
11. Force Majeure. In no event shall Cogility be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Cogility’s reasonable control, including without limitation (i) acts of God; (ii) flood, fire, earthquake, other natural disasters, pandemic or other public health conditions, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) shortage of adequate power or telecommunication facilities; and (viii) any similar force majeure event occurrence on Third-Party Services that impacts Cogility Services.

1. “Customer Content” shall mean the information and content Customer and Customer Users upload, submit, and/or transmit using the Cogility Services.
2. “Customer User” shall mean any an individual accepting this Agreement on his or her own behalf or (as applicable) an individual who is authorized to accept this Agreement on behalf of a legal entity; or an individual, such as a Customer-authorized employee, contractor or agent who is permitted to utilize the Cogility Services in accordance with the terms and conditions of this Agreement.
3. “Derivative Work” shall mean any addition, improvement, update, transformation, adaptation modification, new or derivative work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright or other Intellectual Property Rights in such preexisting work or that uses any trade secrets or other proprietary information or Intellectual Property Rights with respect to such preexisting work. For purposes of AI Features, “Derivative Work” includes without limitation any embodiment of Intellectual Property Rights (other than Customer Data), that is or has been generated, developed, fixed in a tangible medium, conceived or reduced to practice by or on behalf of either Party and that arises from or in connection with any execution, operation or use of AI Features (including without limitation processing, storing, organizing, arranging, selecting, aggregating, adapting or otherwise using or exploiting any data (including Customer Data), content, information, materials or other inputs transmitted, submitted or uploaded to the Cogility Services by the AI Features).
4. “Intellectual Property Rights” shall mean any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
5. “Materials” shall mean Cogility’s TacitRed software (including any object code, executable files, or browser plug-ins), TacitRed website, or materials related thereto provided by Cogility to Customer hereunder, including, without limitation, any software downloaded from Cogility’s website or from the Cogility Services; any related materials and documentation therefor; and any Updates, enhanced functionality (including platform integration features not generally available to non-commercial users of Cogility’s software) or other Updates thereto that may be provided hereunder by Cogility to Customer during the term of this Agreement as stated on the Cogility website Pricing page, and all Derivative Works of any of the foregoing.
6. “Order” shall mean the order form and/or invoice executed by the Parties and setting forth the specific Cogility Services and Materials to be provided hereunder, the fees, and other key terms of Customer’s subscription and license hereunder.
7. “Term” means the Initial Term and Renewal Term(s), collectively
8. “Third Party Services” shall mean any services or other resources used in connection with the Cogility Services or Materials that are hosted or provided by a person or entity other than Cogility or Customer.