Terms & Conditions
Ziften Technologies, Inc.
EFFECTIVE DATE: MAY 25, 2018
These Terms and Conditions, together with the associated Order Form (together, this “Agreement”), sets forth the terms and conditions under which the parties referenced on the Order Form agree that: (i) Ziften will grant the Customer a license to access and use Ziften’s proprietary software and documentation (the “Software”) specifically identified on the Order Form and (ii) Ziften will provide to Customer certain Maintenance and other services as set forth in Section 3 and as identified on the Order Form (collectively, the “Subscription”). Terms used herein and not capitalized herein shall have the meanings ascribed to them in the Order Form. In the event of a conflict between the terms and conditions of these Terms and Conditions and the Order Form, the terms and conditions of the Order Form shall prevail.
LICENSE GRANT AND RIGHTS OF USE
- License. Subject to the terms and conditions of this Agreement, including without limitation payment of the Subscription Fees, Ziften grants to Customer, as of the effective date specified on the applicable Order Form (the “Effective Date”), a non-exclusive, non-transferable (except in connection with an assignment pursuant to Section 10.f), non-sublicensable license, during the Subscription Term, or in perpetuity if specified on the applicable Order Form, to: (i) install the Software and allow Customer’s employees and contractors to use the Software for the sole benefit of Customer; and (ii) to use the Software to develop, power and enable applications, functions or programs designed to function with the Software (“Extensions”) for the sole benefit of Customer and solely for Customer’s internal business use in conjunction with its licensed use of the Software under the immediately preceding item (i), in each case subject to the number of user licenses for which Customer has contracted for as set forth on the applicable Order Form.
- Limitations. Customer may use the Software only for Customer’s own internal business purposes. Unless otherwise expressly permitted in this Agreement, Customer 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; (iii) use the Software to assist or take part in the development, marketing, or sale of a product potentially competitive with the Software; or (iv) permit any third parties to use the Software. Customer 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. Customer shall not include any portion of the Software in any Extension.
- Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the Subscription and immediately notify Ziften in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Subscription or any Extension directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Ziften to prevent or terminate unauthorized use of the Subscription or any Extension.
- Archival Copies. Customer may make a reasonable number of copies of the Software for back-up or archival purposes.
- No Other License. Except for the express license granted herein, Ziften grants no other rights or licenses to Customer.
- License to Extensions. Customer hereby grants Ziften a non-exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable license under Customer’s applicable intellectual property rights relating to any Extensions to use, distribute, modify, incorporate into its products and services and otherwise exploit any concept or feature comprising the same.
MAINTENANCE AND PROFESSIONAL SERVICES
a. Maintenance. Subject to Customer’s payment of the Subscription Fees specified on the applicable Order Form(s), Ziften shall provide Customer with the following maintenance services (“Maintenance”) during the Subscription Term:
- Changes and corrections to the Software as are required to (A) keep the Software conforming in all material respects to the applicable documentation, and (B) correct reported problems that are replicated and diagnosed by Ziften as defects in the Software; and
- Updates, new releases, and enhancements to the Software, which Ziften does not separately price or market and which are made available to Ziften’s general client base for the Ziften products licensed by Customer hereunder. All corrections, modifications, releases, refinements, and enhancements shall be referred to and be included in the definition of “Software”. All corrections, modifications, releases, refinements, and enhancements shall be referred to and be included in the definition of “Software”.
- Support. Maintenance also includes Support for the Software. For purposes of this Agreement, “Support” shall mean that Ziften shall provide Customer with reasonable technical assistance via telephone, email, or other means of electronic communication, to assist Customer in the use of the Software. Support will be provided either (i) Monday through Friday, from 8:00 AM to 6:00 PM (CT), exclusive of generally accepted holidays observed by Ziften (“Standard Support”), or (ii) subject to payment of applicable fees, seven (7) days per week, twenty-four (24) hours per day (“Premium Support”). Such election shall be identified on the Order Form. If no such election is made, Standard Support shall be the default. Support will be provided solely to Customer’s named technical support representatives.
- Exclusions to Maintenance. Ziften shall not have any obligation of any kind to provide Maintenance for problems in the operation or performance of the Software caused by any of the following (each, a "Customer-Generated Error"): (i) non-Ziften software or hardware products (including without limitation any Extension); (ii) Customer's failure to properly maintain Customer's site and equipment on which the Software is installed; or (iii) modifications made to the Software by someone other than Ziften. If Ziften determines that it is necessary to perform Maintenance for a problem caused by a Customer-Generated Error, Ziften will notify Customer thereof as soon as it is aware of such Customer-Generated Error, and will have the right to invoice Customer at Ziften's then-current published time and materials rates for all such Maintenance performed by Ziften.
- Professional Services. If and when Customer desires to obtain certain professional services (“Services”) from Ziften, Customer shall communicate to Ziften the type and extent of Services desired, and Ziften shall develop and provide to Customer a statement of work (the “SOW”) as part of the applicable Order Form describing the desired Services for Customer’s review and approval. Ziften shall not have any obligation to provide Services to Customer unless and until an SOW has been Approved by Customer. For purposes of this Agreement, “Approved” shall mean the execution of the applicable Order Form. Each SOW shall commence upon Approval of the associated Order Form and shall continue until all tasks described therein are completed, unless earlier terminated pursuant to this Section 3.d or as otherwise set forth in the SOW. An SOW may be terminated by either party if any material breach of such SOW continues uncorrected for more than 30 days (10 days in the event of non-payment) after written notice from the aggrieved party describing the breach. In the event of termination or expiration of this Agreement, all outstanding SOWs shall immediately terminate, unless otherwise set forth in the applicable SOW or agreed in writing by the parties. The parties may, by mutual Approval, make changes (“Changes”) to the scope, content, deliverables, schedule or other substantive aspects of the Services agreed to in any SOW. The party requesting a Change shall prepare a written “Change Order”, specifying in adequate detail the requested Change(s), and shall submit it to the other party for review and, if accepted, Approval thereof. In no event shall any Change be effective or acted upon in any way or implemented until a Change Order defining such change has been Approved by the duly authorized representatives of both parties. In the event of a conflict between the terms and conditions of these Terms and Conditions and any SOW, the terms and conditions of the SOW shall prevail solely with respect to such SOW.
- Work Product. Unless otherwise specifically agreed in an applicable SOW, Ziften shall own all right, title and interest (including all intellectual property rights) in and to all inventions (whether or not patentable), works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by Ziften in connection with the Services ("Work Product"). All Work Product created hereunder shall be included in the applicable Subscription.
- Subcontracting. Ziften may subcontract all or some of its support obligations to third parties. In such an event, Ziften shall remain fully responsible for all of its support obligations hereunder.
- a. Maintenance. Subject to Customer’s payment of the Subscription Fees specified on the applicable Order Form(s), Ziften shall provide Customer with the following maintenance services (“Maintenance”) during the Subscription Term:
FEES AND PAYMENT
- Fees. Customer will pay to Ziften the License and Maintenance fees (“Subscription Fees”) specified in the applicable Order Form. Payment of Subscription Fees shall be due as specified in the applicable Order Form. Service fees will be charged to Customer as set forth in the applicable Order Form. Any extension in Customer’s use of the Subscription, including any additional licenses, will require payment of additional Subscription Fees in accordance with Ziften’s then current terms and fees unless otherwise set forth in the applicable Order Form. Customer will reimburse Ziften for any reasonable out-of-pocket expenses incurred in connection with performing any Maintenance or Services at Customer's site.
- Payment. Payment of all fees and charges under this Agreement shall be made in U.S. Dollars. Except as otherwise set forth in the applicable Order Form or SOW: (i) Payments shall be due upon the Effective Date of the applicable Order Form (and payable thirty (30) days from the invoice date to Ziften, as indicated. All past due amounts are subject to a late payment charge equal to the lesser of (i) one percent (1%) per month or (ii) the maximum rate allowed by law.
- Taxes. The prices and charges hereunder do not include any amount for taxes or duties. If any duty, sales, use, excise, property, withholding, or other tax, penalty, or interest, is, or should ultimately be, assessed against or is required to be collected by Ziften or by any taxing authority in connection with its performance required hereunder, Customer agrees to pay any and all such charges. This paragraph does not apply to Ziften’s income or franchise taxes or to taxes for which Customer provides a valid tax exemption certificate.
- Ziften Proprietary Information. The Software and all intellectual property rights related thereto, and any business, operational, or technical information provided to Customer 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 Customer. Ziften shall own and retain all rights, title, and interest in and to the Ziften Proprietary Information and all modifications, enhancements, or other derivative works thereof, by whomever made, and all recommendations, suggestions, and feedback provided by Customer with respect to the Software or Services. By granting specific rights to Customer hereunder, Ziften does not grant any rights, title or interest in or to the Ziften Proprietary Information. Customer 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 Customer to protect Customer's own confidential information. Customer 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 Customer consultants who (i) require access for Customer'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.
- Customer Proprietary Information. Ziften agrees to maintain the confidentiality of the business, operational, and financial materials and data provided by Customer to Ziften hereunder (the “Customer Proprietary Information”). Ziften shall use commercially reasonable efforts to confine knowledge of such Customer 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.
- Customer Proprietary Information Storage. Customer agrees and acknowledges that unless provided otherwise in the Order Form, Ziften will store Customer Proprietary Information for a period of six (6) months from the date on which the applicable Customer Proprietary Information was provided to Ziften by Customer, after which time such Customer Proprietary Information will be deleted. To the extent that Customer has elected to obtain additional storage services, as indicated in the Order Form, Ziften will store and delete Customer Proprietary Information in its possession in accordance with the parameters set forth in the Order Form.
- Relief. The parties 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.
- 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 any body 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.
TERM AND TERMINATION
- 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. The term of each Subscription will begin upon the Effective Date of the applicable Order Form 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 party in accordance with the terms of this Agreement. At the end of the Initial Term the applicable Subscription shall automatically renew for consecutive renewal terms of one year (each, a “Renewal Term”) unless either party gives a written notice of termination at least 60 days prior to the end of the Initial Term or the then current Renewal Term (the Initial Term and all Renewal Terms shall be the “Subscription Term”). Then-current Subscription 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 Subscription Term. Termination of a Subscription shall not terminate any other Subscription then in effect unless the act or omission giving rise to such termination would also terminate another Subscription.
- Termination for Cause. Either party 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 Customer’s failure to make payment when due) and fails to cure such material breach within thirty (30) days after delivery of such written notice.
- Termination Resulting from Indemnity. Ziften may terminate this Agreement pursuant to Section 8.a.
- Immediate Termination. Ziften or Customer 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 Customer) the license grants or license restrictions.
- Effect of Termination. Upon a termination for any reason in connection with which the licenses granted in Section 2.a do not survive as specified in Section 6.g, Customer shall: (i) immediately stop using the terminated Subscription and any Extensions; (ii) ensure that all of Customer’s users immediately stop using the terminated Subscription and any Extensions; (iii) destroy all original and any copies of any Extensions in Customer’s possession, custody or control; and (iv) return to Ziften the original and all permitted copies of the applicable Software and Ziften Proprietary Information in Customer’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 Customer. In the event of any termination for Ziften’s uncured breach, Ziften shall refund to Customer all prepaid but unused Subscription Fees for the terminated Subscription.
- Nonexclusive Remedy. Termination by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
- 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.e, 4, 5, 6, 7.b, 8, 9 and 10 which shall survive termination. In the case of a perpetual license as indicated in the Order Form, the license set forth in Section 2.a shall survive, other than a termination by Ziften pursuant to Sections 6.b, 6.c, or 6.d.
Ziften Warranty. Ziften warrants that:
- It has the right to enter into this Agreement and grant the licenses hereunder;
- For the period ending sixty (60) days from the Effective Date, the Software will perform substantially as described in the applicable documentation. Customer 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) Customer 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; provided, however, that Ziften’s obligations under this section 7(a)(ii) shall not apply to any non-performance resulting from any Extension.
- 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 8 BELOW), OR FITNESS FOR A PARTICULAR PURPOSE. ZIFTEN DOES NOT WARRANT THAT THE SOFTWARE WILL MEET THE REQUIREMENTS OF CUSTOMER OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, FOR THE PURPOSE OF THE LICENSE GRANTED IN SECTION 2(a)(ii), THE SOFTWARE IS PROVIDED “AS IS” WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, AND CUSTOMER’S DEVELOPMENT AND USE OF ANY EXTENSION IS AT ITS OWN DISCRETION AND RISK. NOTHING IN THIS AGREEMENT WILL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY ZIFTEN WITH RESPECT TO ANY EXTENSION.
- Ziften Warranty. Ziften warrants that:
- Ziften Indemnification Obligation. Ziften will indemnify, defend, and hold Customer harmless from any action brought against Customer 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 Customer that are attributable to any such claim, provided Customer gives Ziften prompt written notice of any claim, and Ziften shall have sole control of the defense, settlement, or compromise of any such claim. Customer 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 Customer 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 Subscription and/or this Agreement and refund any applicable prepaid but unused Subscription Fees.
- Customer Indemnification Obligation. Customer will indemnify, defend, and hold Ziften harmless from any action brought against Ziften that is based on a claim that any Extension infringes a United States patent, copyright, or trade secret. Customer will pay those costs and damages finally awarded against Ziften that are attributable to any such claim, provided Ziften gives Customer prompt written notice of any claim, and Customer shall have sole control of the defense, settlement, or compromise of any such claim. Ziften may elect to participate in any such action with an attorney of its own choice and at its own expense.
- 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; (iv) any Extensions; or (v) 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.
- Entire Obligation. The foregoing states the entire obligations and liability of Ziften with respect to any claim of third-party infringement regarding the Software.
LIMITATIONS ON LIABILITY
- Maximum Liability. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM SECTIONS 2 (LICENSE GRANT AND RIGHTS OF USE), 5 (CONFIDENTIALITY), AND 8 (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 PARTY NOR ZIFTEN’S THIRD-PARTY LICENSORS SHALL BE LIABLE HEREUNDER FOR DAMAGES WHICH EXCEED, IN THE AGGREGATE, THE FEES PAID OR OWED BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES WHICH GAVE RISE TO SUCH DAMAGES.
- Disclaimer of Damages. EXCEPT WITH RESPECT TO LIABILITY ARISING FROM SECTIONS 2 (LICENSE GRANT AND RIGHTS OF USE) AND 5 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY 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. IN NO EVENT SHALL ZIFTEN, OR ZIFTEN’S THIRD-PARTY LICENSORS BE LIABLE FOR ANY DAMAGES OR OTHER LIABILITY ARISING FROM ANY EXTENSION.
- Export. Customer shall comply with all export laws, rules, and regulations of the United States Government and any other applicable jurisdiction pertaining to the Software. Customer 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.
- Force Majeure. Neither party 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.
- Notices. All required notices under this Agreement shall be given in writing and sent to the recipient party's address stated in this Agreement, 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.
- 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.
- 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.
- Assignment. Neither party 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 Customer’s consent. Any purported assignment in violation of this section shall be null and void.
- 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 Customer 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. 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 the parties acknowledges that it has read, understands, and agrees to this Agreement as being effective for all purposes as of the date of signing.