END USER LICENSE AGREEMENT

1. BACKGROUND.
  • This End User License Agreement, together with the associated Order Form (together, this “Agreement”), sets forth the terms and conditions under which Ziften Technologies, Inc. (“Ziften”) will grant the End User a license to access and use Ziften’s proprietary software and documentation (the “Software”) specifically identified on the Order Form (the “License”). End User’s use of the Software under the License is expressly conditioned on End User’s acceptance and execution of this End User License Agreement. For purposes of this Agreement “Order Form” means the applicable agreement and/or order entered into by and between the End User and the authorized reseller identified therein (the “Authorized Reseller”) and in the event of a conflict between the terms and conditions of this End User License Agreement and that Order Form, this End User License Agreement shall prevail.
2. LICENSE GRANT AND RIGHTS OF USE
  • a. License. Subject to the terms and conditions of this Agreement, including without limitation payment of the applicable License and Maintenance fees specified on the Order Form (“Fees”), Ziften grants to End User, as of the earlier of (i) the effective date specified on the applicable Order Form and (ii) the date on which End User first accessed or used the software (the “Effective Date”), a non-exclusive, non-transferable (except in connection with an assignment pursuant to Section 8.f), non-sublicensable license, during the Term, or in perpetuity if specified on the applicable Order Form, to install the Software and allow End User’s employees and contractors to use the Software for the sole benefit of End User and subject to the number of user licenses for which End User has contracted for as set forth on the applicable Order Form.
  • b. Limitations. End User may use the Software only for End User’s own internal business purposes. Unless otherwise expressly permitted in this Agreement, End User shall not: (i) use the Software to process, or permit the Software to process, data for any third party; (ii) use the Software in operation of a service bureau; or (iii) permit any third parties to use the Software. End User shall not permit any part of the Software to be reproduced, modified, translated, decompiled, disassembled, adapted, reverse engineered, distributed, displayed, published, transferred, or otherwise used, in any form or by any means.
  • c. Unauthorized Use. End User will use reasonable efforts to prevent any unauthorized use of the Software and immediately notify Ziften in writing of any unauthorized use that comes to End User’s attention. If there is unauthorized use by anyone who obtained access to the Software directly or indirectly through End User, End User will take all steps reasonably necessary to terminate the unauthorized use. End User will cooperate and assist with any actions taken by Ziften to prevent or terminate unauthorized use of the Software.
  • d. Archival Copies. End User may make a reasonable number of copies of the Software for back-up or archival purposes.
  • e. No Other License. Except for the express license granted herein, Ziften grants no other rights or licenses to End User.
3. CONFIDENTIALITY
  • a. Ziften Proprietary Information. The Software and all intellectual property rights related thereto, and any business, operational, or technical information provided to End User by Ziften hereunder (the “Ziften Proprietary Information”) constitute trade secrets and proprietary information of Ziften or its third-party licensors, and nothing in this Agreement shall be construed to convey any title or ownership rights to End User. Ziften shall own and retain all rights, title, and interest in and to the Ziften Proprietary Information and all copies, modifications, enhancements, or other derivative works thereof, by whomever made, and all recommendations, suggestions, and feedback provided by End User with respect to the Software. By granting specific rights to End User hereunder, Ziften does not grant any rights, title or interest in or to the Ziften Proprietary Information. End User will use commercially reasonable efforts to safeguard the confidentiality of the Ziften Proprietary Information and any other information marked as confidential by Ziften, including those taken by End User to protect End User’s own confidential information. End User will not use or disclose, in whole or in part, any item of the Software, Ziften Proprietary Information, or any other information marked as confidential to any individual, entity, or other person, except as set forth herein or to those End User consultants who (i) require access for End User’s authorized use of the Ziften Proprietary Information, (ii) agree in writing to comply with the use and non-disclosure provisions no less restrictive than those set forth in this Agreement, and (iii) are not competitors of Ziften.
  • b. End User Proprietary Information. Ziften agrees to maintain the confidentiality of the business, operational, and financial materials and data provided by End User to Ziften hereunder (the “End User Proprietary Information”). Ziften shall use commercially reasonable efforts to confine knowledge of such End User Proprietary Information to only its employees, third party consultants, and service providers (i) who require such knowledge and use in the ordinary course and scope of their employment and/or business with Ziften and (ii) who agree in writing to comply with the use and non-disclosure provisions no less restrictive than those set forth in this Agreement.
  • c. Relief. Ziften and End User acknowledge that in the event either party fails to fulfill its obligations under this Section, the non-breaching party (including any third-party licensors) shall have the right to take all reasonable steps to protect their proprietary interests, including, but not limited to, seeking injunctive relief and any other remedies as may be available at law or in equity, without being required to post a bond.
  • d. Exceptions. Either party’s obligations to maintain the confidentiality of the other party’s Proprietary Information shall not apply where the Proprietary Information (i) was placed in the public domain by the owner of such information prior to the disclosure; (ii) was independently developed by the other party without use or knowledge of the Proprietary Information; (iii) becomes available without breach of this Agreement; (iv) is rightfully received by the other party from a third party without an obligation of confidentiality; or (v) is demanded by a lawful order from any court or anybody empowered to issue such an order. Each party agrees to notify the other promptly of the receipt of any such order, and to provide the other with a copy of such order.
4. TERM AND TERMINATION
  • a. Term. This Agreement will begin on the date it is Approved by both parties and will remain in effect thereafter unless terminated earlier in accordance with the terms of this Agreement. For purposes of this Agreement, “Approved” shall mean the execution of this End User License Agreement. The term of each License will begin upon the Effective Date and will remain in effect thereafter for the initial term specified in the applicable Order Form (the “Initial Term”), or until terminated earlier by either Ziften or End User in accordance with the terms of this Agreement. At the end of the Initial Term, the applicable License shall automatically renew for consecutive renewal terms of one year (each, a “Renewal Term”) unless at least 60 days prior to the end of the Initial Term or the then current Renewal Term, either (i) End User gives written notice of termination to Ziften and to the Authorized Reseller, or (ii) Ziften gives written notice of termination to End User (the Initial Term and all Renewal Terms shall be the “Term”). Then-current Fees for any Renewal Term may be annually increased by no more than ten percent (10%) and shall be invoiced on the same schedule as in effect for the billing period immediately prior to the expiration of the applicable Term. Termination of a License shall not terminate any other License then in effect unless the act or omission giving rise to such termination would also terminate another License.
  • b. Termination for Cause. Either Ziften or End User may terminate this Agreement upon thirty (30) days’ prior written notice to the other party, if the other party is in material breach of this Agreement (including End User’s failure to make payment when due) and fails to cure such material breach within thirty (30) days after delivery of such written notice.
  • c. Termination Resulting from Indemnity. Ziften may terminate this Agreement pursuant to Section 6.a.
  • d. Immediate Termination. Ziften or End User may immediately terminate this Agreement upon notice if the other party: (i) ceases to carry on business as a going concern; (ii) becomes the object of the institution of voluntary proceedings in bankruptcy or liquidation; (iii) becomes the object of the institution of involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets, if such petition or proceeding is not dismissed or receiver discharged within 30 days of filing or appointment; or (iv) breaches (only with respect to End User) the license grants or license restrictions.
  • e. Effect of Termination. Upon termination for any reason, End User shall: (i) immediately stop using the terminated Software; (ii) ensure that all of End User’s users immediately stop using the terminated Software; and (iii) return to Ziften the original and all permitted copies of the applicable Software and Ziften Proprietary Information in End User’s possession, custody, or control; or (iv) in lieu of returning such Software and Ziften Proprietary Information as specified in the immediately preceding item (iii), destroy all such copies and certify in writing, such destruction, signed by an officer of End User. In the event of any termination for Ziften’s uncured breach, Ziften shall refund to End User all prepaid but unused Fees for the terminated License.
  • f. Nonexclusive Remedy. Termination by either Ziften or End User will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
  • g. Survival. Termination shall not: (i) release either party from any claim, including but not limited to any claim for payment, of the other party accrued hereunder prior to the effective date of such termination; or (ii) affect the rights and obligations set forth in Sections 2.b, 3, 4, 5.b, 6, 7 and 8 which shall survive termination.
5. WARRANTIES
  • a. Ziften Warranty. Ziften warrants that:
    • i. It has the right to enter into this Agreement and grant the licenses hereunder;
    • ii. For the period ending sixty (60) days from the Effective Date, the Software will perform substantially as described in the applicable documentation. End User shall promptly notify Ziften in writing of any alleged nonperformance. To the extent, (i) the Software is being used in accordance with the documentation, and (ii) End User is current on all fees payable hereunder, Ziften shall, at its own cost and expense, either repair or replace the Software to correct such non-performance.
  • b. Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH ABOVE, ZIFTEN AND ITS THIRD-PARTY LICENSORS HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES (IMPLIED, STATUTORY, OR OTHERWISE), INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT (SUBJECT TO ZIFTEN’S INDEMNITY OBLIGATION SET FORTH IN SECTION 6 BELOW), OR FITNESS FOR A PARTICULAR PURPOSE. ZIFTEN DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF END USER OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
6. ZIFTEN INDEMNIFICATION
  • a. Indemnification Obligation. Ziften will indemnify, defend, and hold End User harmless from any action brought against End User that is based on a claim that the Software infringes a United States patent, copyright, or trade secret. Ziften will pay those costs and damages finally awarded against End User that are attributable to any such claim, provided End User gives Ziften prompt written notice of any claim, and Ziften shall have sole control of the defense, settlement, or compromise of any such claim. End User may elect to participate in any such action with an attorney of its own choice and at its own expense. If the Software becomes, or, in Ziften’s opinion, is likely to become, the subject of a claim of infringement, Ziften may, at its option (i) procure for End User the right to continue using the Software; or (ii) replace or modify the Software to make it non-infringing; or if neither (i) nor (ii) are commercially reasonable, (iii) terminate the applicable License and/or this Agreement and refund any applicable prepaid but unused Fees.
  • b. Exceptions. Ziften’s indemnification obligations shall not apply to any claim of infringement resulting from: (i) the combination of the Software with other products or services (to the extent that the claim is based upon such combination); (ii) use of the Software if it has been modified, altered, enhanced, or changed in any way by anyone other than Ziften; (iii) use of the Software in a manner not authorized by this Agreement or provided for in the documentation; or (iv) use of other than the most current, release of the Software, if such claim would have been avoided by use of the most current release.
  • c. Entire Obligation. The foregoing states the entire obligations and liability of Ziften with respect to any claim of third-party infringement regarding the Software.
7. LIMITATIONS ON LIABILITY
  • a. Maximum Liability. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM SECTIONS 2 (LICENSE GRANT AND RIGHTS OF USE), 4 (CONFIDENTIALITY), AND 6 (ZIFTEN INDEMNIFICATION), AND NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY LIABILITY, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT AGAINST A PARTY, NEITHER END USER, ZIFTEN, NOR ZIFTEN’S THIRD-PARTY LICENSORS SHALL BE LIABLE HEREUNDER FOR DAMAGES WHICH EXCEED, IN THE AGGREGATE, THE FEES PAID OR OWED TO ZIFTEN BY END USER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES WHICH GAVE RISE TO SUCH DAMAGES.
  • b. Disclaimer of Consequential Damages. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM SECTIONS 2 (LICENSE GRANT AND RIGHTS OF USE) AND 3 (CONFIDENTIALITY), IN NO EVENT SHALL END USER, ZIFTEN, OR ZIFTEN’S THIRD-PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE DAMAGES, OR FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION OR LOSS OF PROFITS, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE.
8. GENERAL PROVISIONS
  • a. Export. End User shall comply with all export laws, rules, and regulations of the United States Government and any other applicable jurisdiction pertaining to the Software. End User hereby certifies that it will not directly or indirectly, export, re-export, or otherwise transfer the Software or related information, media, or products in violation of any applicable laws, rules, and regulations.
  • b. Force Majeure. Neither Ziften nor End User shall be liable to the other for any delay or failure to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond that party’s reasonable control; provided that this section shall never be an excuse for late or nonpayment.
  • c. Notices. All required notices under this Agreement shall be given in writing and sent to the recipient party’s address stated in this Agreement; provided, that all such notices to Ziften shall be addressed to 2700 Via Fortuna, Suite 410, Austin, Texas 78746, unless otherwise changed in writing. All notices shall be given by certified or registered mail, or overnight carrier. Such notices shall be deemed given on the date of receipt of delivery of said notice.
  • d. Waiver of Breach. No breach or provision of this Agreement shall be deemed waived, modified, or excused, unless such waiver, modification, or excuse is in writing and signed by an authorized representative of the waiving, modifying, or excusing party.
  • e. Severability. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion.
  • f. Assignment. Neither Ziften nor End User may assign or transfer its rights or obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, Ziften may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets without having to obtain End User’s consent. Any purported assignment in violation of this section shall be null and void.
  • g. Miscellaneous. This Agreement (including, without limitation, the Order Form and addenda if applicable) constitutes the final, complete, and exclusive statement of the agreement between the parties with respect to the subject matter hereof and cannot be altered, amended, or modified except in writing signed by an authorized representative of each party. This Agreement supersedes any click-wrap or shrink-wrap license agreements that may be included within the Software. The terms and conditions of any purchase order or other instrument issued by End User in connection with this Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement are null and void and shall not be binding on Ziften, unless mutually agreed to in writing by Ziften. Ziften shall be deemed a third party beneficiary of this End User License Agreement and shall be entitled to enforce them against End User. This Agreement will be governed by and construed in accordance with the laws of the State of Texas without giving effect to principles of conflict of law. This Agreement expressly excludes and disclaims the terms of the UN Convention on Contracts for the International Sale of Goods, which Convention shall not apply to any transaction under this Agreement. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Austin, TX, and the parties hereby consent to the personal jurisdiction and venue therein. By Approving the associated Order Form, each of End User acknowledges that it has read, understands, and agrees to this Agreement as being effective for all purposes as of the date of signing.
IN WITNESS WHEREOF, Ziften and End User have caused their duly authorized representatives to execute this End User License Agreement as of the Effective Date.