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Subscription License Agreement

CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO INSTALLING THE SOFTWARE. INSTALLING OR USING THE SOFTWARE INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT. If you do not agree to all of these terms and conditions, immediately return the software and all other components of this product to Cognitive Inc. (“Cognitive”). By using the software, you agree to abide by all of the following terms and conditions:

1. Grant of License.

Subject to your compliance with this Agreement, and your prompt and continual payment for your Subscription Period, Cognitive grants you a worldwide, non-exclusive, non-transferable, limited license during the Subscription Period under all applicable Proprietary Rights to use the Software made available by Cognitive to you per the respective license set forth in this Agreement. You may physically transfer the Software from one computer or file server and install the Software on another computer or file server, provided that you run the Software on only one computer at a time. You agree to pay Cognitive an additional fee determined by Cognitive if you intend to run the Software simultaneously on more than one computer or in any way not authorized by this Agreement.

The terms and conditions of this Agreement shall be applicable to any new versions, upgrades, or patches of the Software which may be obtained, through license or otherwise, from Cognitive during the Subscription Period.

It is understood and agreed that the Software may not operate without the use of Licensing Technology such as Internet-based authentication or any other mechanism chosen at the sole discretion of Cognitive. The parties acknowledge that some or all of the Software is currently designed so that a copy will not run without being authorized by Licensing Technology.

2. Subscription Period.

The Subscription Period of this license shall be defined in the associated Purchase Agreement, Service Order, Licensing Exhibit or Invoice. Upon any termination or expiration of this Subscription Period, without subsequent renewal of the Subscription Period, the rights and licenses granted to you under this Agreement will automatically terminate, and you agree to cease using the Software.

3. Copyright Ownership.

Cognitive owns all of the Worldwide Intellectual Property Rights including, without limitation, the copyright in the Software and the Documentation you have received.

4. Restrictions on License.

You shall not use the Software in any way not authorized by the Agreement. You shall not disassemble, decompile or otherwise reverse engineer the Software or any applicable Licensing Technology. You shall not sell, rent, lease, transfer, copy or use the Software, except as specifically provided in this Agreement or specifically approved by Cognitive. You shall not transfer the Software, any copy of the Software, and/or any applicable Licensing Technology to another person or entity outside your immediate organization or company, on either a permanent or temporary basis, unless you obtain Cognitive’s prior written approval and you pay the then-current license transfer fee. If Cognitive approves the transfer, you must transfer the Software, any applicable Licensing Technology, the Documentation and all copies of the Software.

Open Source Software.  Notwithstanding anything to the contrary, you are not licensed to (and you agree that you will not) integrate or use the Software with any Open Source Software or otherwise take any action that could require disclosure, distribution, or licensing of all or any part of the Software in source code form, for the purpose of making derivative works, or at no charge.  For the purposes of this Agreement, “Open Source Software” shall mean software licensed under the GNU General Public License, the GNU Lesser General Public License, or any other license term that could require, or condition your use, modification, or distribution of such software on, the disclosure, distribution, or licensing of any other software in source code form, for the purpose of making derivative works, or at no charge.  Any violation of the foregoing provision shall immediately terminate all of your licenses and other rights to the Software granted under this Agreement.

5. Modifications to Software.

If you make any adaptation or modification to or create a derivative work from the Software which contains any part of the Software (a “Modification”), you shall have a nonexclusive, limited, royalty-free license to use such Modification. You hereby grant to Cognitive a non-exclusive, perpetual, worldwide, royalty-free license to use such Modification for any purposes, including without limitation commercial exploitation. You hereby agree to immediately notify Cognitive of all Modifications and to immediately provide Cognitive with copies of all Modifications in a form which will allow Cognitive to use the Modifications. You hereby agree to assign to Cognitive all copyrights in and to any Modifications.

6. Limited Warranty and Disclaimer of Liability.

Cognitive warrants that the Software will function substantially in accordance with the written specifications set forth in the Documentation provided with the Software for a period of thirty (30) days from the date of delivery to you. Cognitive does not warrant that the Software or applicable Licensing Technology will function without error or interruption.

Cognitive Obligations Under the Warranty. Cognitive will replace without charge any Software that does not perform substantially in accordance with the written specifications set forth in the Documentation for a period of thirty (30) days after delivery, if you notify Cognitive within (10) days after you discover the problem. If the Software does not perform substantially in accordance with such written specifications within the first thirty (30) days after installation, you can cancel your Subscription to the Software for a refund of the fee paid. In the case of an error in the Documentation, Cognitive will correct errors in the Documentation without charge by providing addenda or substitute content.

Limitations on Cognitive Obligations. The foregoing limited warranty does not cover any Software which has been altered or changed in any way by anyone other than Cognitive.

Except for the limited warranties stated above, Cognitive does not make any other express or implied representations or warranties, including but not limited to any warranty of merchantability or fitness for a particular purpose, with respect to the medium, Software, Licensing Technology or Documentation or with respect to the performance of the Software.

Cognitive shall not be liable, under any theory of liability, however arising, for any indirect, special, exemplary, punitive, incidental or consequential damages of any kind (including without limitation any damages for loss of use, interruption of business, loss of business profits, loss of business information, or damage to hardware) arising out of the delivery of, installation of, use of, or inability to use the Software, Licensing Technology, regardless of whether Cognitive has been advised of the possibility of such damages. Some states do not allow the exclusion or limitation of incidental or consequential damages, as the above exclusion or limitation may not apply to you. IN NO EVENT SHALL Cognitive’S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES EXCEED THE TOTAL AMOUNTS PAID BY YOU (OR DUE FROM YOU) FOR THE APPLICABLE SOFTWARE WITHIN THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY WILL APPLY REGARDLESS OF THE FORM, OR SOURCE, OF ACTION AND REGARDLESS OF ANY OBLIGATION STATED UNDER THIS AGREEMENT.

Cognitive’s entire liability and your exclusive remedy shall be the repair, replacements, or refund under the limited warranties stated above. The agents, employees, distributors and dealers of Cognitive are not authorized to make changes to this warranty, or to provide additional warranties. Accordingly, any additional statements by Cognitive employees, distributors, or any advertising, for example, whether oral or written, are not authorized and do not constitute warranties by Cognitive and shall not be relied upon.

How to Obtain Warranty. You must notify Cognitive about the defective item in writing to

Your Other Rights Under Applicable State Law. This warranty gives you specific legal rights and you may also have other rights which vary from state to state.

7. Termination.

Cognitive reserves all rights concerning the Software not expressly granted to you in this Agreement. You agree to comply with all of the terms of this Agreement and to take all reasonable actions to protect the Software from theft, use or copying contrary to the terms of this Agreement. If you violate any term of this Agreement, Cognitive retains the right to immediately terminate this Agreement and your rights granted herein. You agree to destroy the Software, the Documentation, and all copies of the Software in your possession or control immediately upon receiving notice of Cognitive’s termination of this Agreement. If the Licensing Technology utilized by the Software is internet-based, the associated license key will be deactivated by Cognitive.

8. General Conditions.

The validity, enforceability, interpretation and performance of this Agreement shall be governed by the laws of the State of New Jersey. This Agreement is deemed entered into at Woodbury, New Jersey. The parties agree to exclude, in its entirety, the application of the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any amendments thereto.

The failure of either party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce any such provisions.

Termination of this Agreement shall not affect provisions of this Agreement which by their terms and meaning are of a continuing nature.

This Agreement sets forth the entire understanding and agreement between Cognitive and you as to the subject matter hereof and merges all prior advertising, discussions, proposals, purchase orders, agreements, communications, and representations between us, whether written or oral. This Agreement may be modified only by a written agreement signed by an authorized officer of Cognitive and by you.

If any provision of this Agreement shall be held by a court of competent jurisdiction or arbitrator(s) to be contrary to law, the remaining provisions of this Agreement shall remain in force and effect.

This Agreement shall be deemed effective from the date the Software is installed, and shall be valid for so long as you are licensed to use the Software, unless terminated earlier by Cognitive for a violation of its terms.

All disputes of whatsoever kind, relating, interpreting or in connection with this Agreement in any way, which the parties have been unable to resolve, shall be resolved by binding arbitration to be held only in Woodbury, New Jersey, according to the Commercial Arbitration Rules then effective of the American Arbitration Association. The Arbitration shall be conducted in the English language and the parties agree that a sole arbitrator shall be selected. The decision of the arbitrator shall be final and binding upon the parties, both as to law and to fact, enforceable at law or in equity, as the case may require, and shall not be appealable to any court in any jurisdiction.  Judgment upon any award of arbitration may be entered in any state or federal court in New Jersey.  The arbitrator shall, as part of the award, order that the party which does not prevail shall pay the prevailing party its attorneys’ fees and expenses of any such arbitration.  However, the administrative costs of such arbitration as determined by the American Arbitration Association shall be equally shared between the parties and shall be limited to the arbitrator’s fees and expenses and other administrative expenses charged by the American Arbitration Association.  Charges for stenographic fees and expenses shall be borne by the parties ordering such services.  Nothing herein set forth shall prevent the parties from settling any dispute or controversy by mutual agreement at any time.  In no event shall any demand for arbitration be made after the date on which the legal or equitable claim would be barred by the applicable statute of limitations or other principles of law. Nothing herein contained shall bar the right of a party equitable relief pending the outcome of any arbitration proceeding that has been or will be, when contractually permissible, requested.

Cognitive may assign its rights under this Agreement to any party for any reason whatsoever. You may not assign your rights under this Agreement, in whole or in part, to any party without the prior written consent of Cognitive.

No party shall be liable for, nor shall any party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control (each a “Force Majeure Event”), including any act of God or a public enemy, any act of terrorism, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications, power or other utility, labor problem, unavailability of supplies, or any other cause, whether similar or dissimilar to any of the foregoing; provided, however, that upon learning of any Force Majeure Event, the applicable party shall immediately notify the other party of such Force Majeure Event.

9. Export Law Assurances.

You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained.  In particular, but without limitation, the Software may not be exported or re-exported (i) into (or to a national or resident of) any U.S. embargoed country or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders.  By using the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.

10. Acknowledgment.

You acknowledge that you have read this Agreement, understand it, and agree and intend to be bound by its terms and conditions.

Last Updated: January 11, 2022