General Terms and Conditions
1. Definitions
Any capitalized term used but not otherwise defined in this Agreement has the meaning ascribed to it as set forth below.
“Aggregate Data” means Customer Data and any data derived from Customer Data or Customer’s access to or use of the Service, in each case where such data has been aggregated and de-identified through use of the Service in a manner that does not reveal any personal information and cannot reasonably be used (except through association by Customer with a personal identifier within the custody and control of Customer) to identify Customer and its customers or users as the source or subject of such data.
“Agreement” means the GTC together with the applicable Order incorporating the GTC.
“Claim” means any dispute or claim arising from or relating to this Agreement, including the validity, applicability or interpretation of this Agreement.
“Confidential Information” means information that a party discloses to the other party in connection with this Agreement that the party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary. Confidential Information includes non-public information that a party discloses in connection with this Agreement relating to: Intellectual Property; technology; know-how; prototypes; current and future products and services; processes; customers; vendors; suppliers; employees; contractors; business plans and methods; research and development; promotional and marketing activities; finances; pricing; contracts and business arrangements; and other business affairs.
“Credentials” means any user account, password and other authentication credential associated with access to or use of the Service by Customer.
“Customer” means the party identified as “Customer” in the applicable Order.
“Customer Data” means any data that Customer submits, uploads, emails, transmits or otherwise makes available through the Service.
“Customer Facility” means any Credential or account, hardware, system or other facility within Customer’s custody or control.
“Disclosing Party” means the party disclosing Confidential Information to the other party.
“Documentation” means Zenus’ then-current user manual and technical documentation for the Service that Zenus makes generally available to customers.
“Emergency Security Issue” means any access to or use of the Service by: (a) Customer that disrupts or is reasonably likely to disrupt the availability of the Service to other users; or (b) any unauthorized third party through access to or use of any Customer Facility.
“Exception” means any: (a) access to or use of the Service by Customer or through any Customer Facility in any manner that does not comply in all material respects with the terms and conditions of this Agreement; (b) access to or use of the Service by Customer in combination with any hardware or software not provided by Zenus or approved as set forth in the Documentation; (c) modification to the Service by or on behalf of Customer not made or authorized by Zenus; (d) corruption, inaccuracy or other defect of Customer Data as provided by Customer; (e) failure by Customer to give all required notices and obtain all necessary consents (including all required permissions from Intellectual Property holders) for processing of Customer Data in accordance with this Agreement; or (f) Security Breach occurring with respect to Customer Data within Customer’s custody or control.
“GTC” means these General Terms and Conditions.
“Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); sui generis database rights; trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
“Kit” means the hardware, including any camera, IoT device, digital display, tablet stand, hotspot, LED lights, power supply or cable, provided by Zenus to Customer under this Agreement for use in accordance with this Agreement.
“Order” means a sales order incorporating the GTC for Customer to obtain access to and use of certain Zenus offerings specified in the sales order.
“Platform” means Zenus’ proprietary online platform for administering Kits, assessing the operation of Kits, and accessing and assessing data obtained from Kits.
“Process” and “process” (each as used in relation to data) means to employ any operation on data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Receiving Party” means the party receiving Confidential Information from the other party.
“Security Breach” means any: (a) unauthorized processing of Customer Data; or (b) breach of the physical, technical, administrative or organizational safeguards implemented by a party to protect Customer Data against unauthorized processing.
“Service” means access to or use of the Kit and Platform as made available by Zenus under this Agreement.
“Suggestion” means any suggestion, comment, idea, improvement or other feedback relating to any Zenus Materials that Customer elects to provide or make available to Zenus.
“Zenus Materials” means, collectively, the Documentation, Kits and Platform, including all improvements, enhancements and modifications thereto and derivative works thereof.
2. Grant of Rights
a) Access and Use. During the term of the applicable Order and subject to Customer’s compliance in all material respects with the terms and conditions of this Agreement: (i) Zenus shall use commercially reasonable efforts to provide Customer with access to and use of the Service; and (ii) Zenus hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Service and Documentation for Customer’s internal business purposes.
b) Support. During the term of this Agreement, Zenus shall provide customer with maintenance and support services as set forth at https://www.zenus.ai/service-level-agreement.
c) Third-Party Components. Some components of the Service may be provided with or incorporate third-party components licensed under open source license agreements or other third-party license terms (collectively, “Third-Party Components”). Third-Party Components are subject to separate terms and conditions set forth in the respective license agreements relating to such components, as identified at this link.
3. Kits
a) Delivery. Zenus shall deliver to Customer the number of Kits specified in the applicable Order. Customer shall be solely responsible for the delivery charges specified in each Order (if any) and any applicable customs and duties.
b) Deployment and Setup. Except as expressly set forth in any Order as services to be provided by Zenus, Customer shall be solely responsible for: (i) proper deployment and setup of Kits in accordance with the Documentation; and (ii) any errors arising from improper deployment, setup or use of Kits.
c) Return. This Agreement grants Customer with access to and use of Kits as part of the Service only for the duration of the project for which the Kit was provided as specified in the Order . Kits are not sold to Customer, and Zenus retains ownership of and title to all Kits. Customer shall promptly return each Kit to Zenus within 5 business days after the conclusion of the project for which the Kit was provided as specified in the Order or expiration or termination of this Agreement for any reason, whichever is sooner. Failure by Customer to return any Kit to Zenus within such time will be subject to a fee of $100 per Kit per day.
d) Damage and Loss. If Customer damages a Kit, Customer shall deliver the damaged Kit to Zenus for repair or replacement, subject to Customer’s payment of Zenus’ then-standard rates for repair or replacement, provided that Zenus will may make minor repairs to Kits (i.e., repairs costing less than $50) free of charge. If Customer loses a Kit or damages a Kit beyond the possibility of repair on commercially reasonable terms, Customer shall pay for a replacement Kit at Zenus’ then-standard rate for a replacement Kit (approximately $3,000 per Kit, but subject to change). In each such case, Customer shall be solely responsible for the cost of delivering the affected Kit to Zenus and for delivery of any repaired or replacement Kit to Customer.
4. Conditions and Restrictions
a) Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself, nor may it permit any other party to: (i) reproduce, distribute, modify, translate, adapt or create derivative works based upon any Zenus Materials; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive any source code or architectural framework of any Zenus Materials; (iii) access or use any Zenus Materials for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes functions and features substantially similar to any Zenus Materials; (iv) ping or otherwise transmit commands or queries to the Platform for any purpose other than as contemplated herein; (v) rent, lease, lend, sell or sublicense any Zenus Materials, or otherwise provide access to or use of any Zenus Materials as part of a service bureau or similar fee-for-service purpose; (vi) submit, upload, email, transmit or otherwise make available through or to the Service any material that violates another party’s Intellectual Property or other proprietary rights; or (vii) access or use any Zenus Materials in any way that does not comply with all applicable laws and regulations.
b) Technical Requirements. Except with respect to Zenus’ provision of Customer with Kits as specified in the applicable Order, Customer shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software or services required for Customer to access or use the Service, including computers, mobile devices, operating systems, web browsers and storage devices.
c) Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. If Customer becomes aware of any unauthorized access to or use of the Service through use of Customer Facilities, Customer shall promptly give written notice to Zenus of such unauthorized access or use and make reasonable efforts to eliminate such unauthorized access or use. Customer shall implement and adhere to appropriate administrative, technical and physical security policies and procedures and access control methodologies to safeguard access to and use of the Service through Customer Facilities. All such measures must comply with prevailing industry standards but must in no case consist of less than reasonable care.
5. Fees and Taxes
a) Fees. Customer shall pay Zenus the applicable fees set forth in each Order pursuant to the payment terms set forth therein. If an Order does not set forth payment terms, payment will be due on receipt of applicable invoice by the Customer. Any payment not received by Zenus from Customer when due will incur interest at the rate of 1.5% per month or the maximum amount permitted by law, whichever is lower. Customer shall reimburse Zenus for any reasonable expenses, including any reasonable attorneys’ fees and fees for collections agencies, Zenus incurs to collect any unpaid amount under this Agreement. Unless otherwise specified, all fees set forth in an Order are denominated and due in United States dollars.
b) Taxes. Any and all amounts payable hereunder by Customer are exclusive of any value-added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes, except for any Taxes based upon Zenus’ net income. If Zenus has the legal obligation to collect any Taxes, Customer shall reimburse Zenus upon invoice by Zenus. If Customer is required by applicable law to withhold any amount from its payments to Zenus under this Agreement and pay such amount to a tax authority, Customer shall pay such amount to the applicable tax authority without deduction from its payments to Zenus under this Agreement and pay Zenus the full amount due Zenus from Customer under this Agreement as if such withholding obligation were not applicable. Customer shall be solely responsible for any penalties and interest assessed by any tax authority that arise from Customer’s failure or delay in paying any applicable Taxes.
6. Intellectual Property
a) Zenus Ownership. As between Zenus and Customer, Zenus owns all rights, title and interest (including all Intellectual Property) in and to Zenus Materials and Aggregate Data.
b) Customer Ownership. As between Customer and Zenus, Customer owns all rights, title and interest (including all Intellectual Property) in and to Customer Data.
c) Suggestions. If Customer provides any Suggestion to Zenus, Customer hereby grants Zenus a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made such Suggestion for any lawful purpose, without credit or compensation to Customer.
d) Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright, trademark, patent or other proprietary notices or disclaimers that appear on or within Zenus Materials.
e) Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
7. Data Protection and Security
a) Notices and Consents. Customer shall give all required notices and obtain all necessary consents (including all required permissions from Intellectual Property holders) before submitting Customer Data through or to the Service or otherwise providing Customer Data to Zenus. Without limiting the generality of the foregoing sentence, Customer shall advise all Customer users and data subjects of the Service that access to and use of the Service is subject to the Zenus privacy policy at https://www.zenus.ai/privacy-policy. Customer shall not submit, upload, email, transmit or otherwise make available through or to the Service any data not owned by Customer or for which Customer does not have all necessary authorization to submit, upload, email, transmit or otherwise make available through or to the Service.
b) Purpose of Processing. During the term of this Agreement, Customer hereby grants Zenus and its service providers a worldwide, royalty-free, non-exclusive license to process Customer Data, but only: (i) as necessary for Zenus to provide Customer with access to and use of the Service in accordance with this Agreement; (ii) evaluate the performance of the Service; or (iii) in a manner consistent with Customer’s written instructions.
c) Data Access. Customer acknowledges and agrees that if a Kit is deployed for Customer by or in coordination with a third-party coordinator, Zenus may make Customer Data from the Kit accessible to the third-party coordinator unless Customer opts out by giving written notice to Zenus. Without limiting the generality of the foregoing sentence, Customer acknowledges and agrees that if a Kit is deployed for Customer in connection with a conference, exhibition or other event, Zenus may make Customer Data from the Kit accessible to the event organizer unless Customer opts out by giving written notice to Zenus.
d) Aggregate Data. Customer acknowledges and agrees that Zenus may: (i) collect or generate Aggregate Data in connection with Customer’s access to or use of the Service; and (ii) use Aggregate Data for any lawful purpose, including for the purpose of creating and disseminating industry and sector analyses and reports.
e) Protection and Security. Zenus and Customer shall each implement and maintain appropriate administrative, technical and physical security policies and procedures and access control methodologies consistent with prevailing industry standards, but in no case less than reasonable care, to: (i) safeguard Customer Data within its custody or control against any Security Breach; and (ii) comply with all laws and regulations, including all privacy and data security laws and regulations, applicable to its processing of Customer Data.
f) Security Breach. If either party becomes aware of a Security Breach, it shall promptly (but in no case more than 48 hours after it becomes aware of such Security Breach) give the other party notice of the Security Breach, provided that it may delay providing such notice to the extent required by applicable law or the instructions of a law enforcement agency.
8. Confidential Information
a) Maintenance and Use. Receiving Party shall maintain Confidential Information in strict confidence, using the same degree of care that it uses to protect the confidentiality of its own confidential information of like nature, but in no case less than reasonable care. Receiving Party shall not: (i) use or disclose Confidential Information other than as necessary to exercise its rights or fulfill its obligations under this Agreement; or (ii) modify, adapt, reverse engineer, decode, decompile or disassemble Confidential Information, or create any derivative work based upon Confidential Information, except as expressly permitted under this Agreement.
b) Access. Receiving Party shall restrict access to and use of Confidential Information to its directors, officers, employees, contractors, agents and legal and financial advisers who: (i) have a legitimate need to know Confidential Information; (ii) are informed of the confidential nature of Confidential Information; and (iii) are bound by obligations with respect to Confidential Information that are consistent with, and at least as restrictive as, those imposed by this Agreement.
c) Exclusions. The duties of confidentiality imposed by this Section 8 do not apply to any information to the extent that it: (i) is known or becomes known to the public in general, other than as a result of a breach of this Agreement or any other confidentiality agreement; (ii) was known by or in the lawful possession of Receiving Party prior to receipt from Disclosing Party; (iii) is or has been independently developed or conceived by Receiving Party without use of or reference to Confidential Information; or (iv) is or has been provided or made known to Receiving Party by a third party without a breach of any obligation of confidentiality to Disclosing Party.
d) Required Disclosures. Receiving Party may disclose Confidential Information as required to comply with the order of a governmental entity that has jurisdiction over Receiving Party or as otherwise required by law, provided that Receiving Party: (i) notifies Disclosing Party of such required disclosure in advance (to the extent permitted by law) to provide Disclosing Party with an opportunity to seek a protective order; and (ii) takes reasonable steps to minimize the extent of any such required disclosure.
9. Term, Suspension and Termination
a) Term. The term of this Agreement will be as set forth in the applicable Order.
b) Suspension. Zenus reserves the right to suspend Customer’s access to or use of the Service in the event of: (i) an Emergency Security Issue; or (ii) Customer’s failure to pay fees hereunder when due, provided that Zenus gives Customer written notice (email to suffice) of such non-payment and Customer does not remedy the non-payment within five days after such notice. With respect to suspension for an Emergency Security Issue, Zenus shall use commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue.
c) Termination. Notwithstanding anything to the contrary, either party may terminate this Agreement: (i) upon a material breach of this Agreement by the other party if such breach remains uncured 30 days after the party gives the other party written notice of the breach; or (ii) by either party if the other party becomes insolvent or bankrupt; becomes the subject of any proceeding under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
d) Events Upon Termination. Upon expiration or termination of this Agreement for any reason: (i) all rights granted by Zenus under this Agreement terminate immediately; (ii) Customer shall immediately cease all access to and use of all Zenus Materials and promptly return all Kits to Zenus; and (iii) each party shall immediately cease all use of the other party’s Confidential Information and return or destroy all copies of such Confidential Information that are within its custody or control.
e) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement will survive such expiration or termination, including Sections: 3(b) (Deployment and Setup); 3(c) (Return); 3(d) (Damage and Loss); 4(a) (Restrictions); 5 (Fees and Taxes); 6 (Intellectual Property); 7 (Data Protection and Security); 8 (Confidential Information); 9(d) (Events Upon Termination); 9(e) (Survival); 10(a) (Representations and Warranties; General); 11 (Indemnification); 12 (Disclaimer of Warranties); 13 (Limitation of Liability); and 14 (Miscellaneous)
10. Representations and Warranties
a) General. Zenus and Customer each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) its execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) its entry into and performance of this Agreement will not conflict with any provision of law or its certificate of incorporation, bylaws or comparable organizational documents; (iv) no action by any governmental entity is necessary to make this Agreement valid and binding upon it; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
b) Kit Warranty. Zenus represents and warrants to Customer that, during the term of this Agreement, each Kit will be free from defects in materials and workmanship, provided that Customer uses the Kit for its intended purpose in compliance with the Documentation in all material respects (the “Kit Warranty”). To receive warranty service, Customer shall contact Zenus for a return materials authorization (“RMA”) and deliver the Kit to Zenus with the RMA. Customer shall be solely responsible for the costs of delivering the Kit to Zenus. Upon Zenus’ receipt of the Kit, Zenus shall assess the Kit to determine whether the Kit fails to meet the Kit Warranty. If Zenus determines that the Kit fails to meet the Kit Warranty, Zenus shall, in its sole discretion, repair or replace the Kit and deliver the repaired or replacement Kit to Customer at Zenus’ cost. If Zenus determines that the damage to or defect in the Kit is not covered by the Kit Warranty, then Customer may request that Zenus: (i) repair the Kit, subject to Customer’s payment of Zenus’ then-standard rates for repairs; or (ii) replace the Kit, subject to Customer’s payment of Zenus’ then-standard rates for replacement Kits. Delivery of repaired or replacement Kits to Customer in such case will be at Customer’s cost. This Section 10(b) sets forth Customer’s exclusive remedy and Zenus’ sole obligation with respect to any breach of the Kit Warranty.
11. Indemnification
a) Zenus Indemnification. Zenus agrees that Customer shall have no liability and Zenus shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of an unaffiliated third party (collectively, “Losses”) asserting that any Zenus Materials infringe the Intellectual Property of such third party. Notwithstanding anything to the contrary, Zenus shall have no obligation to indemnify, defend or hold Customer harmless against any Loss to the extent arising from an Exception. If any part of Zenus Materials becomes the subject of a claim, or Zenus reasonably determines that any part of Zenus Materials is likely to become the subject of a claim, asserting that Zenus Materials infringe the Intellectual Property of a third party, Zenus may, in its sole discretion: (i) procure a license as necessary for Customer to continue use of Zenus Materials in accordance with this Agreement; (ii) modify or replace Zenus Materials to avoid infringement, provided that Zenus Materials as modified or replaced retain materially the same or better features and functionality; or (iii) terminate the applicable Order (or portion thereof) for Zenus Materials and provide a pro rata refund of the fees paid by Customer to Zenus for any unused subscription period for the applicable Zenus Materials. This Section 11(a) sets forth Customer’s sole and exclusive remedy with respect to any Losses to the extent arising from any action or claim of an unaffiliated third party asserting that any Zenus Materials infringe the Intellectual Property of such third party.
b) Customer Indemnification. Customer agrees that Zenus shall have no liability and Customer shall indemnify, defend and hold Zenus harmless against any Loss to the extent arising from any Exception or Customer’s breach of this Agreement.
c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim, provided that failure of the indemnified party to give such prompt written notice will not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 11, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim, provided that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation. The indemnified party shall have the right to retain its own counsel at its own expense to participate in the defense or settlement of any indemnified claim.
12. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXCEPT AS SET FORTH IN SECTION 10), EXPRESS OR IMPLIED, INCLUDING: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (b) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT ACCESS TO OR USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL DATA AND RESULTS SUBMITTED TO OR OBTAINED FROM THE SERVICE BEFORE TAKING OR OMITTING ANY ACTION BASED UPON SUCH DATA OR RESULTS.
13. Limitation of Liability
a) DISCLAIMER. IN NO EVENT WILL ZENUS BE LIABLE UNDER THIS AGREEMENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF (OR INABILITY TO USE) THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF ZENUS MATERIALS, EVEN IF ZENUS HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
b) DAMAGES. IN NO EVENT WILL ZENUS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO ZENUS UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
c) EXCLUSIONS. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTIONS 13(a) AND 13(b) DO NOT APPLY WITH RESPECT TO ZENUS’ FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, VIOLATION OF LAW OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.
14. Miscellaneous
a) Independent Contractors. The relationship between Zenus and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party without the express prior written consent of such other party.
b) U.S. Government Matters. Notwithstanding anything to the contrary, Customer shall not provide to any person or export or re-export or allow the export or re-export of any Zenus Materials or any direct product of services rendered under this Agreement (collectively “Controlled Subject Matter”) in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the generality of the foregoing sentence, Customer acknowledges and agrees that it shall not, and it shall not permit any other party to, use, export or re-export the Controlled Subject Matter in or to jurisdictions outside the United States or in or to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), including in or to any national or resident of an Embargoed Country, or any entity on the United States Department of Treasury’s List of Specially-Designated Nationals or the United States Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the United States Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Zenus are “commercial items” and, according to DFAR section 252.227 7014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the United States Government is governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.
c) Notice. Except as expressly provided otherwise in this Agreement, notices given under this Agreement will be in writing and personally delivered by hand, sent via an internationally-recognized courier service, mailed by first-class certified mail (return receipt requested), or sent via email to the address for each party set forth below. Notices will be deemed to have been given: (i) if personally delivered by hand, when delivered (with written confirmation of delivery); (ii) if sent via an internationally-recognized courier service or by first-class certified mail (return receipt requested), when delivered (as shown in the records of the courier or postal service, as applicable); or (iii) if sent via email, on the date such email is transmitted, provided that any notice sent by email after 5:00 p.m. local time for the recipient will be deemed received on the next business day.
To Zenus
411 W Monroe Street
Austin, TX 78704
+1 512-829-1159
To Customer
As set forth in the applicable Order.
d) Assignment. Customer may not assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of Zenus. Zenus may assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without Customer’s consent. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
e) Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
f) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between the terms and conditions of the GTC and any applicable Order, the terms and conditions of the GTC will take precedence and control except as expressly and unambiguously stated otherwise in the applicable Order.
g) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
h) Choice of Law. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Texas and the laws of the United States of America applicable therein, including the United States Federal Arbitration Act, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted by any state) are specifically excluded from application to this Agreement.
i) Mandatory Arbitration. All Claims will be resolved through binding arbitration rather than in court. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its then-applicable Commercial Arbitration Rules. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration will be conducted in the English language by a single independent and neutral arbitrator. Any hearing conducted in person as part of the arbitration will be conducted in Austin, Texas. The decision of the arbitrator on all matters relating to the Claim will be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction. Notwithstanding anything to the contrary, each party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Intellectual Property, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 14(i).
j) WAIVER OF CLASS ACTION. ALL CLAIMS (AS DEFINED IN SECTION 1) WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, EACH PARTY HEREBY WAIVES ANY RIGHT TO A JURY TRIAL AND AGREES THAT SUCH CLAIM WILL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. EACH PARTY HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
k) Severability. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
l) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
m) Force Majeure. Neither party will be liable for any failure to perform under this Agreement to the extent due to any cause beyond the reasonable control of the party invoking this provision, including any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, internet or telecommunications failure, injunction or any act, exercise, assertion or requirement of any governmental entity, epidemic, pandemic, public health crisis, destruction of production facilities or insurrection.
n) Publicity. Customer hereby grants Zenus the right and permission to identify Customer as a Zenus customer (including through reference to Customer’s name and logo) on Zenus’ website and in marketing and promotional materials disseminated by Zenus.
o) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.