Service Terms

Last Updated May 10, 2018

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE OFFERED BY ZUGATA, INC. (“ZUGATA”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER”) OR BY ACCESSING OR USING THE SERVICE IN ANY MANNER, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. SCOPE OF SERVICE AND RESTRICTIONS

1.1 Scope of Service.

Subject to Zugata’s receipt of the applicable Fees with respect to the service(s) specified in the corresponding Order (the “Service”), Zugata will use commercially reasonable efforts to make the Service available to Customer as set forth in this Agreement and the Order. Subject to Customer’s compliance with the terms and conditions of the Agreement, the corresponding Order, and Zugata’s documentation regarding the Service (the “Documentation”), Customer may access and use the Service solely during the period specified in the Order (the “Service Term”). Any use of the Service by Customer is authorized solely for Customer’s internal business and not for resale, distribution or use by any third party. Only the specific number of Users identified in the corresponding Order may access or use the Service (the “Authorized Users”). For purposes of this Agreement, a “User” means a Customer employee, consultant, or contractor making use of or accessing the Service solely for Customer’s internal use. Zugata may add or make non-material modifications to the features within the Services from time to time, without prior notice to Subscriber.

1.2 Access to Service.

In order to access and use the Services, Customer will need to register with Zugata and create an account (“Account”). Customer is responsible for maintaining the confidentiality of its Account, including the login and passwords for all Users. Customer agrees to notify Zugata if any passwords are lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. Customer is responsible for all activities that occur under its Account, including those carried out by any User associated with the Account. Subscriber will promptly notify Zugata of any unauthorized use of or access to the Service.

1.3 Restrictions.

The Services, Zugata Software, Documentation, and all other materials provided by Zugata hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all intellectual property rights in each of the foregoing (“Zugata Properties”) are the exclusive property of Zugata and its suppliers. Subscriber agrees that it will not, and will not permit any User or other party to: (a) permit any party to access the Zugata Properties, other than the Users under this Agreement; (b) modify, adapt, alter or translate the Zugata Properties; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Zugata Properties to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Zugata Software; (e) use or copy the Zugata Properties except as expressly allowed pursuant to this Agreement; (f) interfere with or attempt to interfere with proper functioning of the Zugata Properties or use the Zugata Properties in any way not expressly authorized by this Agreement; or (g) disclose or transmit any data contained in the Zugata Properties to any individual other than an User, except as expressly allowed herein.

1.4 Ownership and Intellectual Property Rights.

Zugata retains all right, title, and interest in and to the Service, and any software, products, works or other intellectual property created, used, provided or made available by Zugata under or in connection with the Service. Customer may from time to time provide suggestions, comments or other feedback to Zugata with respect to the Service (“Feedback”). Customer shall, and hereby does, grant to Zugata a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Zugata’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as the software or technologies that Customer may develop, produce, market, or distribute.

1.5 Software.

Subject to the terms and conditions of this Agreement, including but not limited to receipt of all applicable Fees, to the extent Zugata makes Zugata’s proprietary software available to Customer (the “Software”), Zugata hereby grants to Customer, a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to: run the Software solely as necessary to make use of the Service. In addition to the restrictions set forth above, Customer agrees that, except as otherwise expressly provided by this Agreement, it shall not: (a) exceed the scope of the licenses granted in this Section 1.5; (b) make copies of the Software or Documentation; (c) sublicense, assign, delegate, rent, lease, sell, timeshare or otherwise transfer the benefits of, use under, or rights to, the license granted in this Section 1.5, and any attempt to make any such sublicense, assignment, delegation or other transfer by Customer shall be void and of no effect; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the Software, except to the extent required to be permitted under applicable law; (e) modify, translate or create derivative works of the Software without the prior written consent of Zugata; or (f) remove any copyright, trademark, patent or other proprietary notice that appears on the Software, Documentation or copies thereof.

1.6 Subscriber Data.

Zugata claims no ownership rights to Subscriber Data. Customer is solely responsible for Subscriber Data including, but not limited to: (a) compliance with all applicable laws and this Agreement; (b) any claims relating to Subscriber Data; (c) any claims that Subscriber Data infringes, misappropriates, or otherwise violates the rights of any third party; and (d) backing up and maintaining Subscriber Data. Notwithstanding anything to the contrary, Customer consents to and agrees that Zugata may internally use and modify Subscriber Data for the purposes of providing the Services and any support or related services to Customer. For purposes of this Agreement, “Subscriber Data” shall mean any data, information or other material provided, uploaded, generated or submitted by Customer to the Service in the course of using the Service. Customer, not Zugata, shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and right to use of all Subscriber Data. Zugata may retain Subscriber Data for up to sixty (60) days following the termination or expiration of the corresponding Order. Thereafter, Customer agrees and acknowledges that Subscriber Data may be irretrievably deleted.

1.7 Personal Data.

Customer shall not make any information relating to an identified or identifiable natural person that is subject to the EU General Data Protection Regulation (the “GDPR”) available to Zugata under this Agreement (the “Subject Data”), unless Customer first enters into the Zugata Data Processing Addendum (the “DPA”). Each party’s obligations with respect to Subject Data shall be governed by the DPA. Customer may request the DPA by sending a request to: sales@zugata.com.

1.8 Support.

Subject to Zugata’s receipt of the corresponding support fees, Zugata will use commercially reasonable efforts to provide Customer the Zugata service levels as set forth in Exhibit A to this Agreement (the “SLA”).

1.9 Service Suspension.

Zugata may suspend Customer’s access to or use of the Service as follows: (a) immediately if Zugata reasonably believes Customer’s use of the Service may pose a security risk to or may adversely impact the Service, or if Customer uses the Service in any manner inconsistent with this Agreement, the corresponding Order, or the Documentation; (b) immediately if Customer become insolvent, has ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; and/or (c) following thirty (30) days written notice if Customer is in breach of this Agreement or any Order (including but not limited to Customer’s failure to pay Zugata the Fees with respect to the Service.

2. ORDERS, FEES AND TAXES

2.1 Orders.

Customer may place Orders for additional Services or to extend the term of the existing Service by specifying such order details in an Order form agreed to in writing by the parties referencing the terms and conditions of this Agreement.

2.2 Fees

Customer shall pay to Zugata the fees as set forth in each applicable Order(s) (collectively, the “Fees”). Customer acknowledges that it shall have no right to return the Service and that all Fees shall be non-refundable. All amounts payable to Zugata under this Agreement shall be paid in United States dollars and shall be due thirty (30) days from the date of invoice. Notwithstanding any other rights of Zugata, in the event of late payment by Customer, Zugata shall be entitled to interest on the amount owing at a rate of 1% per month or the highest rate allowed by applicable law, whichever is less. If Zugata is required to initiate legal action due to nonpayment of fees, Customer shall bear all costs resulting from the collection of such fees.

2.3 Taxes.

Any and all payments made by Zugata in accordance with this Agreement are exclusive of any taxes that might be assessed against Customer by any jurisdiction. Customer shall pay or reimburse Zugata for all value-added, sales, use, property and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of Zugata. All amounts payable to Zugata under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.

3. TERM AND TERMINATION.

3.1 Term

The term of this Agreement shall commence on the Effective and unless terminated earlier according to this Section 3, will end on the last day of the term specified in a last Order (the “Term”).

3.2 Termination for Breach

This Agreement and the Orders hereunder may be terminated: (a) by either party if the other has materially breached this Agreement, within thirty (30) calendar days after written notice of such breach to the other party if the breach is remediable or immediately upon notice if the breach is not remediable; or (b) by Zugata upon written notice to Customer if Customer (i) has made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, (ii) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it.

3.3 Effect of Termination

Upon any expiration or termination of this Agreement, Customer shall (i) immediately cease use of the Service, and (ii) return all Zugata Confidential Information, and Zugata provided Software, and other materials and information provided by Zugata. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees accruing prior to termination. If the Agreement is terminated by Zugata pursuant to Section 3.2 (a), Customer shall pay to Zugata all of the Fees for the entire term set forth in the corresponding Order(s).

3.4 Survival

The following provisions will survive termination of this Agreement: Sections 1.4 (Ownership), 3.3 (Effect of Termination), Section 3.4 (Survival), Section 4 (Confidentiality), Section 5.1 (Indemnification by Customer), Section 7 (Limitation of Liability), Section 8 (Miscellaneous).

4. CONFIDENTIALITY

During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Zugata Software, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Zugata. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Zugata). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

5. INDEMNIFICATION

5.1 Indemnification by Customer

Customer will defend, indemnify, and hold Zugata, its affiliates, suppliers and licensors harmless and each of their respective officers, directors, employees and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim with respect to: (a) Subscriber Data; (b) breach of this Agreement or violation of applicable law by Customer; or (c) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Subscriber Data.

5.2 Indemnification by Zugata.

Zugata will defend, indemnify, and hold Customer harmless from and against any third party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from claims by a thirty party that Customer’s use of the Service directly infringes or misappropriates a third party’s United States (or Berne Convention signatory country) intellectual property rights (an “Infringement Claim”). Notwithstanding any other provision in this Agreement, Zugata shall have no obligation to indemnify or reimburse Customer with respect to any Infringement Claim to the extent arising from: (a) the combination of any Customer Data with the Service; (b) the combination of any products or services, other than those provided by Zugata to Customer under this Agreement, with the Service; or (c) non-discretionary designs or specifications provided to Zugata by Customer that caused such Infringement Claim. Customer agrees to reimburse Zugata for any and all damages, losses, costs and expenses incurred as a result of any of the foregoing actions.

5.3 Notice of Claim and Indemnity Procedure.

In the event of a claim for which a party seeks indemnity or reimbursement under this Section 5 (each an “Indemnified Party”) and as conditions of the indemnity, the Indemnified Party shall: (a) notify the indemnifying party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for the indemnifying party to evaluate such claim; and (b) the Indemnified Party allows the indemnifying party to assume full control of the defense of the claim, including retaining counsel of its own choosing. Upon the assumption by the indemnifying party of the defense of a claim with counsel of its choosing, the indemnifying party will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party in the defense of any such claim. Notwithstanding the foregoing provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without the indemnifying party’s prior written consent, to settle a claim. Subject to the maximum liability set forth in Section 7, the provisions of this Section 5 constitute the entire understanding of the parties regarding each party’s respective liability under this Section 5, including but not limited to Infringement Claims (including related claims for breach of warranty) and each party’s sole obligation to indemnify and reimburse any Indemnified Party.

6. WARRANTY

6.1 Service Warranty.

The Service, when used by Customer in accordance with the provisions of this Agreement and in compliance with the applicable specifications will perform, in all material respects, the Documentation, during the term in the corresponding Order. Customer shall report to Zugata, pursuant to the notice provision of this Agreement, any breach of the warranty set forth in this Section 6. In the event of a breach of warranty by Zugata under this Agreement, Customer’s sole and exclusive remedy, and Zugata’s entire liability, shall be prompt correction of any material non-conformance in order to minimize any material adverse effect on Customer’s business.

6.2 Disclaimer of Warranty.

Zugata does not represent or warrant that the operation of the Service (or any portion thereof) will be uninterrupted or error free, or that the Service (or any portion thereof) will operate in combination with other hardware, software, systems or data not provided by Zugata, except as expressly specified in the applicable Specification. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, ZUGATA MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE OR SERVICES, OR THEIR CONDITION. ZUGATA IS FURNISHING THE WARRANTY SET FORTH IN SECTION 6.1 IN LIEU OF, AND ZUGATA HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

7. LIMITATIONS OF LIABILITY

IN NO EVENT SHALL ZUGATA BE LIABLE FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. ZUGATA’S LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM.

8. MISCELLANEOUS

8.1 Governing Law and Venue.

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Zugata’ principal place of business is located for any lawsuit filed there against Customer by Zugata arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Zugata Software, Documentation, or Services hereunder.Export. Customer may not use, export, import or transfer the Zugata Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained access to such Zugata Properties, and any other applicable laws. In particular, but without limitation, the Zugata Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Zugata Properties, Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer also will not use the Zugata Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. Customer acknowledges and agrees that products, services or technology provided by Zugata are subject to the export control laws and regulations of the United States. Customer shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Zugata products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

8.2 Severability.

If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Customer agrees that the Section 8 will remain in effect notwithstanding the unenforceability of any provision in Section 7.

8.3 Waiver.

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

8.4 Remedies.

Customer acknowledges that the Services, Zugata Software, and Documentation contain valuable trade secrets and proprietary information of Zugata, that any actual or threatened breach of Customer of its obligations with respect to Intellectual Property Rights of Zugata will constitute immediate, irreparable harm to Zugata for which monetary damages would be an inadequate remedy. In such case, Zugata will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Zugata Software, Documentation, or any portions thereof, that Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

8.5 No Assignment.

Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.

8.6 Force Majeure.

Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

8.7 Publicity.

Customer agrees that Zugata may identify Customer as a customer of the Services and display Customer’s name and logo (if any) in connection with such identification, on the Zugata websites and its other published marketing materials. Zugata will use good faith efforts to comply with any reasonable trademark usage guidelines that Customer provides to Zugata in connection with the use of Customer’s trademarks.

8.8 Independent Contractors.

Customer’s relationship to Zugata is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Zugata.

8.9 Notices.

Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.

8.10 Updated Agreement.

Zugata reserves the right to update this Agreement at any time, but if such update occurs, Zugata will bring it to Customer’s attention by publishing such updated version on the www.zugata.com/terms website. The terms and conditions of the updated version of this Agreement shall apply to all Orders placed following the date of publication of the updated version. If Customer does not agree with any terms of the updated Agreement, Customer may not use or access the Service in any manner.

8.11 Entire Agreement.

This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Zugata.

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