Version 1.5 - 02/19/2015
This License Agreement (the "Agreement") is made and entered into by and between N2W (as defined below) and you as, or on behalf of, Licensee (asdefined below). This Agreement governs Licensee's access to the CPMImage and use of the Licensee Instance (as these terms are definedbelow). Each of N2W and Licensee is a "Party" to this Agreement andtogether they are indicated as the "Parties".
By either (a) providing a purchase order complying with N2W price quotation, (b) checking the "I read the License Terms and I Accept them" checkboxand subsequently clicking the "Next" button during the installation and configuration process of the Licensee Instance (as defined below) with the CPM Image (as defined below), or (c) accessing or using the LicenseeInstance, you as, or on behalf of, Licensee, are accepting and agreeingto be bound by the terms and conditions of this Agreement, which becomeseffective as of the date you click the "Next" button (or first access or use the Licensee Instance) (the "Effective Date"). If you are acceptingon behalf of Licensee, you represent and warrant that: (i) you have fulllegal authority to bind Licensee to this Agreement; (ii) you have readand understand this Agreement; and (iii) you agree, on behalf ofLicensee, to this Agreement. If you do not have the legal authority tobind Licensee, please do not click the "Next" button (or access or usethe Licensee Instance).
1. License Grant. N2W grants Licensee a limited, personal, revocable, non-exclusive, non-sublicensable, non-transferrable licenseto do the following during the License Term: (i) install and configurethe CPM Image on a single Licensee Instance, unless otherwise expressly permitted in writing by N2W; (ii) create, maintain and restore Snapshots of Licensee Information using Licensee Instance(s) for the internal business use of (a) Licensee; and (b) Managed Users of Licensee, but only if and to the extent Licensee has been expressly authorized in writing by N2W to use License Instance(s) to manage, monitor and protect Managed Users (collectively, "Permitted Use"); and (iii) copy and usedata resulting from, and Documentation for, a Permitted Use.
2. Ownership and License Restrictions.
2.1. Ownership. N2W exclusively owns and reserves all right, title, and interest in and to the CPM Technology and the CPM Image,which is licensed, not sold, to Licensee.
2.2. License Restrictions. Except as expressly granted andpermitted in the License, neither Licensee nor any End User or, if applicable, Managed User obtains anyright in and to the CPM Technology or may copy or use CPM Technology inany manner, or for any purpose other than, the Permitted Use. NeitherLicensee nor any End User or, if applicable, Managed User, may, or may attempt to (a) modify, alter,translate, tamper with, repair, or otherwise create derivative works ofany CPM Technology; (b) reverse engineer, disassemble, decompile ordecrypt the CPM Technology or otherwise apply any other process orprocedure to discover, extract, reconstruct, or derive the source code,underlying ideas, algorithms, file format, programming orinteroperability interfaces, components, trade secrets or otherproprietary information embodied in or associated with, the CPMTechnology; (c) disable or circumvent any security or encryptionmechanisms used by or in the CPM Image or the Licensee Instance; (d)access, copy or use the CPM Technology in a way intended to avoidincurring fees or exceeding usage limits or quotas; (e) except as and to the extent expressly permitted under Section 1 above, rent, lease,resell, sublicense or otherwise distribute the CPM Technology to otherpeople or entities, or otherwise charge them for the use of the CPMTechnology or the work done on their behalf if it involves the use of Licensee's right to use the CPM Technology; or (f) use the CPMTechnology (or any of its underlying concepts and ideas) to create orimprove (directly or indirectly) a substantially similar product orservice. All licenses granted to Licensee in this Agreement areconditional on Licensee's continued and full compliance with the termsand conditions of this Agreement, and may be terminated by N2W if Licensee does not comply with any term or condition of thisAgreement. During and after the term of this Agreement, Licensee willnot assert, nor will Licensee authorize, assist, or encourage any thirdparty to assert, against N2W or any of its, customers, vendors, businesspartners, or licensors, any patent infringement or other intellectualproperty infringement claim regarding the CPM Technology used by Licensee.
2.3. Feedback. The provision of any Feedback is voluntary. N2Wwill own all right, title, and interest in and to any Feedback and beentitled to use the Feedback without restriction. Licensee herebyirrevocably assign to N2W all right, title, and interest in and to theFeedback and agrees to provide N2W any reasonably required assistance todocument, perfect, and maintain N2W's rights in the Feedback.
3. Access to the CPM Image; use of the Licensee Instance;support
3.1. Account & Email. Licensee must have a valid account withthe Service Provider and an e-mail address to access the CPM Image andexercise its License rights.
3.2. Support to Licensee. If Licensee has fully paid forsupport during the License Term, N2W will provide support to Licensee(but not to End Users or Managed Users) in accordance with N2W's standard support termsthen in effect.
3.3. New Features. N2W may make new tools, features orfunctionality related to the CPM Technology available from time to time,the use of which may be contingent upon Licensee's agreement toadditional terms.
3.4. Changes. From time to time, N2W may make changes to theterms of this Agreement. Substantial changes to existing terms willbecome effective 30 days after they are posted on the N2W website ornotified in writing to Licensee, including by email. Changes that are insignificant or applyto new feature or functionality will be effective immediately uponposting or, if notified by email, as stated in the email message. IfLicensee does not agree to the changed or revised terms, it must stopusing Licensee Instance. By continuing to access the CPM Image and/oruse the Licensed Instance after the effective date of any change to thisAgreement, Licensee agrees to be bound by the changed terms. Licensee isresponsible to check the N2W website regularly for changes.
4.1. Licensee Responsibilities. Licensee is solely responsiblefor (i) all setup, use, operation, configuration and monitoring of theLicensee Instance and the routine backing-up and, if needed, restorationof Licensee Information, occurring under its own and, if applicable, its Managed Users’ accounts with the ServiceProvider, whether performed by Licensee (or any employee, contractor oragent acting on its behalf) or any End User or Managed User (ii) maintaining theconfidentiality of any log-in credentials and private keys provided for Licensee's access to the CPM Image or use of a Licensee Instance.
4.2. Disclaimer of responsibility. N2W shall not beresponsible for unauthorized access to Licensee's or any Managed User’s account with theService Provider. Licensee will immediately inform N2W if it believes anunauthorized third party may be accessing the CPM Image or using theLicensee Instance on its behalf.
4.3. End User and Managed User Violations. Licensee is responsible for any useor action of End Users and Managed Users related to this Agreement, including any exerciseof the License by an End User or a Managed User. Licensee will ensure that all End Users and Managed Users comply with Licensee's obligations under this Agreement. Licensee willfurther ensure that the terms of Licensee's agreement with each End User and Managed Users are consistent with this Agreement. If Licensee becomes aware of anyviolation of Licensee's obligations under this Agreement by an End User or a Managed User, Licensee will immediately terminate such End User's or Managed User’s access to the CPM Image and/or Licensee Instance.
4.4. End User Support. Licensee is responsible for providingsupport service (if any) to End Users and, if applicable, Managed Users.
5. Payment terms
5.1. Fees. Fees and charges applicable to Licensee's rights to exercise the License and receive support services (a) are described in either the applicable price quotation provided by N2W to Licensee, or in the absence of such a price quotation, on the website of N2W or the Service Provider, as applicable; (b) will becalculated and charged periodically by N2W or the Service Provider, asapplicable; and (c) will be paid by Licensee either through the ServiceProvider or directly to N2W (or via a third party acting on its behalf), asagreed between Licensee, N2W and, if applicable, the Service Provider, using one ofthe supported payment methods.
5.2. Payment terms. All amounts payable under this Agreementwill be made without setoff or counterclaim, and without any deductionor withholding. Unless as expressly otherwise set forth in a price quotation provided by N2W to Licensee, the fees and charges for the License and support may bechanged upon a 30 days' advance notice. Licensee waives all claimsrelating to the fees under this Agreement unless claimed within sixtydays after charged. Late payment shall bear an Interest at the rate of1.5% per month (or the highest rate permitted by law, if less). In theevent of a late payment (or other breaches of the Agreement by Licenseeor an End User), N2W reserves the right to suspend the access to the CPMImage or the use of the Licensee Instance.
5.3. Taxes. All fees and charges payable by Licensee areexclusive of applicable taxes and duties, including VAT and applicablesales tax. Licensee will provide to N2W and/or the Service Provider, asapplicable, any information reasonably requested to determine whether anobligation to collect VAT from Licensee, including Licensee's VATidentification number. To apply any exemption from any sales, use, orsimilar transaction tax Licensee is legally entitled to, Licensee mustprovide to N2W and/or the Service Provider a legally-sufficient taxexemption certificates for each taxing jurisdiction. The tax exemptioncertificates will be applied to charges under Licensee's accountoccurring after the date the tax exemption certificates are received.Licensee must notify N2W and/or the Service Provider of any deduction orwithholding that is required by law and pay to N2W and/or the ServiceProvider any additional amounts necessary to ensure that the net amountthat received, after any deduction and withholding, equals the amountthat would have been received if no deduction or withholding had beenrequired. Additionally, Licensee will provide to N2W and/or the ServiceProvider with documentation evidencing that the withheld and deductedamounts have been paid to the relevant taxing authority.
6. Confidentiality. During the term of this Agreement and forfive (5) years thereafter, the Receiving Party will (a) take reasonablemeasures to protect the Confidential Information of the Disclosing Partythat are no less than those measures taken by the Receiving Party toprotect its own Confidential Information of similar nature; (b) notdisclose the Confidential Information of the Disclosing Party, except toAffiliates, employees, agents or professional advisors who need to knowit and who have agreed in writing (or in the case of professionaladvisors are otherwise bound) to keep it confidential, or except whenrequired by law after giving reasonable notice the Disclosing Party if allowedby law; (c) ensure that those people and entities use the receivedConfidential Information of the Disclosing Party only to exercise rightsand fulfill obligations under this Agreement, while using reasonable care.
7. Limited Warranty
7.1. Limited Warranty. N2W warrants that for a period ofninety (90) days from the date on which the CPM Image first becomeaccessible to Licensee, the Licensee Instance will perform substantiallyas described in the then-current Documentation, provided that LicenseeInstance is (a) installed by Licensee with an original and unmodifiedcopy of the most updated version of the CPM Image, as made available by N2W or the Service Provider; (b) is properly configured and managed byLicensee; and (c) used by Licensee per the instructions specified in theDocumentation and in compliance with this Agreement.
7.2. Unwarranted situations. This limited warranty covers onlyproblems that are reproducible and verifiable and does not cover (a) anysoftware, item or services not provided by, or on behalf of, N2W; or (b)problems caused by or arise from Licensee's, an End User's or a Managed User’s, abuse,misuse, unauthorized use, or unauthorized installation of, ormodification to, the CPM Image or the Licensee Instance or failure to take any of the measuresdescribed as part of the responsibility of Licensee under thisAgreement, or that are caused by events beyond N2W's reasonable control,including, without limitations, any failures in the Provider Services(such as the Snapshots).
7.3. Exclusive Remedy. The sole and exclusive obligation of N2W and Licensee's (including without limitation its Managed User’s) sole and exclusive remedy in case of breach of thelimited warranty stated above will be to repair or replace the CPM Imagein a manner enabling conformity to the Limited warranty above. N2W alsohas the option to repay to Licensee the fees paid by Licensee for to theLicense (for the period during which the breach of warranty occurred)instead of repairing or replacing the CPM Image. Prior to repayment,Licensee must permanently stop the use of any Licensee Image anduninstall CPM Image from any Licensee Instance. N2W'S LIABILITY WITHRESPECT TO THE CPM TECHNOLOGY, UNDER ANY WARRANTY, NEGLIGENCE, STRICTLIABILITY OR OTHER THEORY IS EXCLUSIVELY LIMITED TO THE REPAIR ORREPLACEMENT OF THE CPM IMAGE OR TO THE REPAYMENT OF FEES, AS STATED ABOVE.
7.4. GENERAL WARRANTY DISCLAIMER. EXCEPT FOR THE LIMITEDWARRANTY EXPRESSLY STATED ABOVE, N2W MAKE NO OTHER EXPRESS, IMPLIED ORSTATUTORY REPRESENATIONS, GUARANTEES OR WARRANTIES OF ANY KIND WITHREGARD TO THE CPM TECHNOLOGY. THE CPM IMAGE AND THE ACCOMPANYINGDOCUMENTATION ARE OTHERWISE PROVIDED "AS IS" WITHOUT ANY WARRANTYINCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY,CORRESPONDENCE TO DESCRIPTION, TITLE, QUIET ENJOYMENT, ANDNONINFRINGEMENT, WHICH ARE ALL EXPRESSLY DISCLAIMED.
7.5. SPECIFIC WARRANTY DESCLAIMERS. LICENSEE ACKNOWLEDGES THAT THE LICENSEE INSTANCE ONTO WHICH THE CPM IMAGE IS LAUNCHED IS MERELY MANAGING THE USE OF SNAPSHOTS, WHILE THE SNAPSHOTS THEMSELVES AREPERFORMED BY THE SERVICE PROVIDER. ACCORDINGLY, N2W IS NOT RESPONSIBLEOR LIABLE FOR THE SECURITY OR DELETION OF, OR FAILURE TO STORE, ANYLICENSEE INFORMATION. AS BETWEEN N2W AND LICENSEE, LICENSEE IS SOLELYRESPONSIBLE FOR SECURING AND BACKING UP LICENSEE INFORMATION. FURTHER,N2W DOES NOT WARRANT THAT THE OPERATION OF A LICENSED INSTANCE ON WHICHTHE CPM IMAGE IS INSTALLED WILL BE ERROR-FREE, UNINTERRUPTED ORCOMPLETELY SECURE. to
8. Limitation of liability
8.1. LIMITATION ON INDIRECT LIABILITY. N2W WILL NOT BE LIABLEUNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL,CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF REVENUES, LOSS OF PROFITS OR SAVINGS, LOSS OR CURRUPTION OF DATA, OR LOSS OR INTERRUPTION OF BUSINESS), EVENIF N2W KNEW, SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF, THAT SUCH DAMAGESWERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY AS A REMEDY.FURTHER, N2W WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION,REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) LICENSEE'S INABILITY TO USE THE CPM TECHNOLOGY; (B) THE COST OF PROCUREMENT OFSUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, ORCOMMITMENTS BY LICENSEE IN CONNECTION WITH THIS AGREEMENT OR LICENSEE'S EXERCISE OF THE LICENSE; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATIONOF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANYOF LICENSEE INFORMATION OR OTHER DATA.
8.2. LIMITATION ON AMOUNT OF LIABILITY. IN NO EVENT SHALL N2W'S AGGREGATE LIABILITY UNDER THIS AGREEMENT, FOR ANY DAMAGE OR CLAIMARISING FROM LICENSEE'S EXERCISE OF THE LICENSE, USE OF CPM TECHNOLOGY OR THE ACCOMPANYING DOCUMENTATION, EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO N2W DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISETO LIABILITY.
9. Term and Termination
9.1. Term. This Agreement commences on the Effective Date willremain in effect, unless and until terminated as set forth in thisAgreement.
9.2. Termination for Breach. Either Party may terminate thisAgreement for breach if: (i) the other Party is in material breach ofthe Agreement and fails to cure that breach within thirty days afterreceipt of written notice; or (ii) the other Party ceases its businessoperations or becomes subject to insolvency proceedings and theproceedings are not dismissed within ninety days.
9.3. Termination for Convenience. Either Party may terminatethis Agreement for its convenience at any time and for any reason byproviding a prior written notice to the other Party. The notice periodshall be thirty (30) days in case of termination by N2W and immediate incase of termination by Licensee.
9.4. Effects of Termination. Upon the expiration ortermination of this Agreement: (i) any and all rights granted by one Partyto the other will immediately cease; (ii) all fees and charges(including taxes) owed by Licensee to N2W through the effective day oftermination are immediately due upon receipt of the final invoice or electronic bill; (iii) Licensee must permanently stop exercising any of its Licenserights; (iv) upon request, each Party will use commercially reasonableefforts to return or destroy all Confidential Information of the otherParty; and (v) upon request by Licensee, N2W will provide to Licenseepost-termination data retrieval assistance, subject to payment ofapplicable charges for such post-termination data retrieval assistance,similar to the services and charges generally available and charged to N2W licensees then-currently in effect.
10. Data Collection.
10.1 Non-Identifiable Metadata. Licensee acknowledgesand agrees that N2W may collect and use the Non-Identifiable Metadata gathered in connection with Licensee’s access to the CPM Image and use of the Licensee Instance, for the purpose of improving the CPM Technology. Licensee may revoke the above functionality during the configuration process of the Licensee Instance or at any time thereafter.
10.2 Usage Data. Unless Licensee is either paying for the License via a Service Provider or has prepaid for the License Term and received a self-expiring license key from N2W, Licensee acknowledgesand agrees that N2W may collect the Usage Data gathered in connection with Licensee's use of the Licensee Instance for the purpose of calculating and verifying the fees applicable to Licensee’s use of the Licensed Instance, for itself and, if applicable, its Managed Users.
10.3 Licensee Identity. Licensee acknowledgesand agrees that N2W may collect Licensee’s name, address and account number(s) of with the Service Provider, during or after, the configuration process of the Licensee Instance for the purpose of improving support to Licensee. If Licensee is either paying for the License via a Service Provider or has prepaid for the License Term and received a self-expiring license key from N2W, Licensee may skip the above functionality during the configuration process of the Licensee Instance.
11.1. Notices. All notices, communications, reports, approvalsor consents, required or permitted by this Agreement, must be inwriting, in English, and addressed to the other Party's primary point ofcontact. Notices to N2W must be sent by email to firstname.lastname@example.org and will be treated as given upon their receipt,as verified by written or automated receipt or by electronic log.Licensee may also mail notices to N2W's address, as listed on the N2Wwebsite. Notices to Licensee will be emailed by N2W to the email addressprovided by Licensee during the registration with N2W or otherwiseassociated with Licensee's account and will be treated as given whensent. Licensee isresponsible to keep its email account with N2W current.
11.2. Assignment. Licensee may not assign, transfer, delegate orsublicense this Agreement, any part thereof or any right thereunder,without the prior written consent of N2W, except to an Affiliate where: (a)the Affiliate has agreed in writing to be bound by the terms of thisAgreement; (b) Licensee remains liable for obligations under theAgreement in case of default by the Affiliate; and (c) Licensee hasnotified N2W of the assignment. Any other attempt to assign is void.Subject to the foregoing, this Agreement will be binding upon, and inureto the benefit of, the Parties and their respective successors and assigns.
11.3. Force Majeure. N2W will not be liable for failure or delayto perform any obligation under this Agreement, to the extent caused bycircumstances beyond its reasonable control.
11.4. No Agency. This Agreement does not create any agency,partnership or joint venture between the Parties and neither Party hasany authority to bind the other.
11.5. Government Purposes (applicable to US government customersonly). The CPM Image was developed at private expense and is provided tothe U.S. Government as "commercial computer software", "commercialcomputer software documentation" and "technical data" with the samerights and restrictions generally applicable to the CPM Image. IfLicensee exercises the License on behalf of the U.S. Government andthese terms fail to meet the U.S. Government's needs or are inconsistentin any respect with federal law, Licensee will immediately discontinuethe exercise of its License. The terms "commercial item", "commercialcomputer software", "commercial computer software documentation" and"technical data" are defined in the Federal Acquisition Regulation andthe Defense Federal Acquisition Regulation Supplement.
11.6. No Waiver. Neither Party will be deemed to have waived, orrestricted its right to enforce, any rights under this Agreement byfailing to exercise or enforce (or delaying the exercise or enforcementof) such rights. All waivers by us must be in writing to be effective.
11.7. Severability. If any term of this Agreement (or partthereof) is held by a court of competent jurisdiction to be invalid,illegal, or unenforceable, it will interpreted to have been limited,eliminated or severed, to the minimum extent, as necessary to keep theobligations of the Parties, and the rest of the Agreement, in full forceand effect.
11.8. No Third-Party Beneficiaries. This Agreement does notconfer any benefits on any third party individual or entity that is nota Party to this Agreement, unless it expressly states that it does.
11.9. Equitable Relief. Parties acknowledge that a breach of anyprovisions of this Agreement pertaining to Confidential Information, orthe ownership of, license to and restriction on, IPR, may causeirreparable injury to the injured Party, for which monetary damageswould not be an adequate remedy, and the injured Party shall be entitledto seek injunctive or other equitable relief in any state, federal, ornational court of competent jurisdiction for any actual or allegedbreach of these provisions.
11.10. Applicable Law. This Agreement shall be deemed to have beenmade in, governed by and construed pursuant to, the laws of either (a) theState of Delaware, USA, excluding its conflict of law rules; (b) if theprincipal place of business and registered offices of both Parties are located in another stateor country, in the state or country in which N2W’s principal place of business resides; or (c) the state or country expressly otherwise agreed to by both Parties in writing. The United Nations Conventionon Contracts for the International Sales of Goods is specificallydisclaimed.
11.11. Venue. All claims or disputes arising out of or relating tothis Agreement will be litigated exclusively in the courts located ineither (a) the State of Delaware, USA; (b) if the principal place ofbusiness and registered offices of both Parties is located in another state or country, in the state or country in which N2W’s principal place of business resides; or (c) the state or country expressly otherwise agreed to by both Parties in writing. The Parties consent to the personal jurisdictionin those courts.
11.12. Amendments. Any amendment or waiver shall be effective onlyif made in writing, expressly stating it to be an amendment or waiver ofthis Agreement and signed by an authorized representative of each Party.
11.13. Survival. The following Sections will survive expiration ortermination of this Agreement: 2 (Ownership and License Restrictions), 4(Licensee Responsibilities), 5 (Fees and Taxes), 6 (ConfidentialInformation), 7.2, 7.4 and 7.5 (Disclaimer of Warranties), 8 (Limitationof Liability), 9.4 (Effects of Termination), 11 (Miscellaneous) and 12(Definitions).
11.14. Entire Agreement. This Agreement, including all applicablepolicies, procedures and/or guidelines appearing on the N2W website(www.n2ws.com) from time to time, which arehereby incorporated by this reference into, and made part of, thisAgreement, is the entire agreement between N2W and Licensee regardingthe subject matter of this Agreement. This Agreement supersedes allother agreements between the Parties relating to its subject matter. Inentering into this Agreement, neither Party has relied on, and neitherParty will have any right or remedy based on, any prior orcontemporaneous communication, statement, understanding, representationor warranty (whether written or verbal) regarding the subject matter ofthis Agreement, except those expressly set out in this Agreement or a written document signed by the Parties. Ifthere is a conflict between the documents and URLs that make up thisAgreement, the documents will control in the following order: theAgreement, and the terms located at any URL. N2W may provide toLicensee, in addition to, or in place of, any previously-referenced URL,new or updated URLs, which shall be incorporated into this Agreement byreference. N2W will not be bound by, and specifically objects to, anyterm, condition or other provision which is different from or inaddition to the provisions of this Agreement (whether or not it wouldmaterially alter this Agreement) and which is submitted by Licensee inany order, receipt, acceptance, confirmation, correspondence or otherdocument.
12.1. "Affiliate" means any entity that directly or indirectlycontrols, is controlled by, or is under common control with a Party, foras long as such control exists; for the preceding sentence, controlmeans control of greater than fifty percent of the voting rights orequity interests of a Party.
12.2. "Confidential Information" means all nonpublic information(including information pertaining to technology, data, customers,business plans, marketing activities, finances and other businessaffairs of a Party, its End Users and its Managed Users), disclosed by one Party or its Affiliate (the "Disclosing Party") to the other Party or its Affiliate (the "ReceivingParty") under this Agreement, including by or to their respective employees, contractors or agents, that is marked or designated asconfidential or that, given the nature of the information orcircumstances surrounding its disclosure, should reasonably beunderstood to be confidential. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to havebeen known to the Receiving Party at the time of first disclosure by theDisclosing Party; (iii) is received by the Receiving Party from a thirdparty who did not acquire or disclose the same by a wrongful or tortiousact; or (iv) can be shown by documentation to have been independentlydeveloped by the Receiving Party without reference to the ConfidentialInformation of the Disclosing Party. The CPM Technology is considered Confidential Information of N2W; Licensee Information and Usage Data are considered Confidential Information of Licensee, its End Users and/or Managed Users.
12.3. "CPM Image" means a specific virtual machine imagegenerated by the CPM Technology, of the type, supported feature set andunder the terms for which Licensee purchased a right to install and useon a Licensee Instance.
12.4. "CPM Technology" means the CPM software of N2W, includingany related machine image, appliance, data, database, tools, APIs,utilities, scripts, Documentation, error correction, revision, update,translation, recast, modification, compilation, improvement, enhancementand derivatives thereof and any IPR related thereto or embodied therein.
12.5. "Documentation" means the documentation (as may beupdated from time to time) in the form generally made available by N2Wto its licensees and customers for use with the CPM Technology.
12.6. "End User" means any individual or entity that, directlyor indirectly, accesses, copies or installs a Licensee Instance, theCPM Image or uses the Licensee Instance, under Licensee's account.
12.7. "Feedback" means all remarks, requests, suggestions,proposals, data, reports, ideas and improvements pertaining to the CPMTechnology.
12.8. "Intellectual Property Rights" or "IPR" means any andall, current and future, worldwide rights under patent law, copyrightlaw, trade secret law, trademark law, moral rights law, and othersimilar rights.
12.9. "License" means the license specified in Section 2.1 ofthis Agreement.
12.10. "License Term" means a period (ending prior to theexpiration or termination of this Agreement) for which Licensee haspaid, or is committed to pay, the fees described in Section 5.1 of thisAgreement.
12.11. "Licensee" means the individual or legal business entity,represented by an authorized representative (as an employee or agent)acting on its behalf, agreeing to this Agreement.
12.12. "Licensee Information" means software, machine images, data,text, audio, video, images or other content that Licensee or End User(s), or, if applicable and expressly authorized by N2W, a Managed User, runs on, causes to interface with, uploads to, or otherwise transfers,transmits, displays, processes, uses or stores in connection with, theProvider Services, under Licensee's, End User’s or, if applicable, Managed User’s account with the Service Provider,and any intellectual property rights related thereto, and explicitlyexcluding any CPM Technology.
12.13. "Licensee Instance" means each virtual machine instance(s), configured and managed by Licensee that is installed with (or launched from) the CPM Image, provided that Licensee has a right to access and use such instance as part of the Provider Services and, unless Licensee is either paying for the License via a Service Provider or has prepaid for the License Term and received a self-expiring license key from N2W, submitted to N2W its applicable account number with the Service Provider.
12.14. “Managed User” means any individual, entity, device or account with the Service Provider, not owned by Licensee, that, directly or indirectly, in whole or in part, is managed, monitored and/or protected by Licensee using the Licensed Instance.
12.15. "N2W" means either or all of, as the context admits, N2WSoftware Ltd, an Israeli company, N2W Software, Inc., a DelawareCorporation and/or any other Affiliate of N2W Software Ltd.
12.16 “Non-Identifiable Metadata” means information about certain predetermined attributes and characteristics, pertaining to Licensee’s use of the CPM Technology which does not reflect or reference Licensee or any individually identifiable End Users.
12.17. "Provider Services" means the web-based services (including without limitation computing, storage, connectivity, software, machine images, and APIs)made available by the Service Provider to Licensee and/or its Managed Users.
12.18. "Service Provider" means Amazon Web Services LLC and itsAffiliates (collectively, "AWS").
12.19. "Snapshot" means a service provided as part of, and betweenstorage media within, the Provider Services, for the incremental copying of data blocks between a data-retaining services (e.g., Amazon EBS, RDS and Redshift) and a storage repository service (e.g., Amazon S3),for the purpose of backing up and the restoration of data.
12.20 "Usage Data" means information about attributes and characteristics, pertaining to Licensee's, End Users’ and/or Managed Users’ use of the CPM Technology, such as Licensee’s name and address, account numbers with the Service Provider of Licensee, its End Users and/or Managed Users, virtual machines and data retaining services (e.g., AWS account numbers, EC2 instances, EBS volumes, RDS databases and Redshift clusters), which are backed-up using Licensee Instance(s).