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ORBITERA WEB SERVICES
1.1 “Authorized Users” means employees and individual contractors (e.g., temporary employees) of an Orbitera Customer that have been authorized by the Orbitera Customer to access the Orbitera Web Services via the Platform.
1.2 “Documentation” means the user manuals supplied in connection with licensed Software relating to the installation, use and administration of the Software.
1.3 “Orbitera” means Orbitera Inc., a Delaware corporation.
1.4 “Orbitera Customer” means the customer of Orbitera that has authorized you to use the Orbitera Web Services as an Authorized User of such Orbitera customer.
1.5 “Orbitera Customer Agreement” means the agreement between Orbitera and an Orbitera Customer permitting such Orbitera Customer to use the Orbitera Web Services via the Platform and to authorize Authorized Users to use the Orbitera Web Services.
1.6 “Orbitera Web Services” or “Software” means the online customer portal software made available via the Platform as an online service by Orbitera to Orbitera customers.
1.7 “Platform” means the combination of servers and client software used to deliver the Software.
2. Access to Orbitera Web Services.
2.1 Access Rights. Subject to the terms and conditions of this Agreement, Orbitera grants you the non-exclusive right to access and use the Orbitera Web Services solely on the Platform, in the manner and for the purposes described in the Documentation, solely during the period, and to the extent, that the Orbitera Customer is authorized to use and authorize Authorized Users to use the Orbitera Web Services on the Platform under the terms of the Orbitera Customer Agreement.
2.2 Limitations. You represent and warrant that you are an Authorized User under a currently valid and effective Orbitera Customer Agreement, and you agree and acknowledge that your use of the Software is subject to all applicable limitations contained in such Orbitera Customer Agreement. It is your responsibility to inquire with the Orbitera Customer as to any such limitations which apply to you.
2.3 Documentation. You may download and make copies of the Documentation solely for your personal use, but no more than the amount reasonably necessary. You must retain on all such copies all copyright and other proprietary notices that appear on or in the Documentation.
2.4 Other Restrictions. You agree not to modify, port, adapt or translate the Software, or to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software. You are not permitted to sublicense, assign or transfer the Software or any rights in the Software, or authorize any portion of the Software to be accessed by another individual or entity. You are not permitted to (a) use the Software on behalf of third parties; (b) rent, lease, lend or grant other rights in the Software; or (c) using any component, library, database or other technology included with the Software other than solely in connection with your use of the Software.
3. Intellectual Property Rights.
The Software and any copies that you are authorized by Orbitera to make are the intellectual property of and are owned by Orbitera and its licensors. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Orbitera and its licensors. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Except as expressly stated herein, this Agreement does not grant you any intellectual property rights in the Software, and all rights not expressly granted are reserved by Orbitera.
By using the Platform to publicly offer trials of an Orbitera Customer’s software or solution, you authorize Orbitera to publicize such trials, including without limitation to use such Orbitera Customer’s name or logo on Orbitera web properties.
4. No Support.
You acknowledge and agree that Orbitera support obligations, if any, with respect to the Orbitera Web Services are solely to the Orbitera Customer, and you agree to seek all support for the Orbitera Web Services from the Orbitera Customer that has authorized you to be an Authorized User. Additionally, and for the avoidance of doubt, Orbitera has no liability and provides no support for the Platform.
5. No Warranties.
ORBITERA SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SOFTWARE. ORBITERA ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER AS A RESULT YOUR USE OF THE SOFTWARE.
ORBITERA DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY THIRD-PARTY MATERIALS OR SERVICES OFFERED BY OR THROUGH THE PLATFORM. ORBITERA MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT THE PLATFORM, AND SHALL NOT BE LIABLE FOR ANY THIRD PARTIES OR THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.
ORBITERA WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF USING THE PLATFORM OR A THIRD PARTY USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SOFTWARE, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. Limitations on Liability.
IN NO EVENT WILL ORBITERA OR ITS LICENSORS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER, INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, OR PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, EVEN IF AN ORBITERA REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. ORBITERA’S AGGREGATE LIABILITY AND THAT OF ITS LICENSOR’S UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE LESSER OF FIVE HUNDRED UNITED STATES DOLLARS ($500) OR THE AGGREGATE AMOUNT PAID BY YOU FOR THE SOFTWARE. THIS LIMITATION WILL APPLY EVEN IF ORBITERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 6 APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
7. Notice to U.S. Government End Users.
The Software and Documentation are “Commercial Item(s),” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. All rights are reserved under the copyright laws of the United States. Orbitera Inc., 8391 Beverly Blvd. #449 Los Angeles, California 90048.
8. Export Rules.
You acknowledge that the Software is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that you will comply with the Export Laws. You are not permitted to ship, transfer, export or re-export the Software, directly or indirectly, to (a) any countries that are subject to US export restrictions (currently including, but not limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”), (b) any end user whom you know or have reason to know will use them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software. You represent and warrant that (i) you are not a citizen of, or located within, an Embargoed Country, (ii) you will not use the Software for a Prohibited Use, and (iii) you are not a Sanctioned Party. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
9. Term and Termination.
This Agreement shall remain in effect until either (a) any material breach of this Agreement by you occurs, (b) the termination or expiration of the applicable Orbitera Customer Agreement, or (c) other cancellation of the applicable Orbitera Customer’s right to use the Software under such agreement. Upon the occurrence of (a), (b) or (c) above, this Agreement shall automatically terminate. Upon termination of this Agreement for any reason, you must immediately discontinue all use of the Software, Documentation and all copies thereto. Termination shall not, however, relieve either party of obligations incurred prior to the termination. The following Sections shall survive any expiration or termination of this Agreement: 1 (Definitions), 3 (Intellectual Property Rights), 5 (No Warranties), 6 (Limitations on Liability), 7 (Notice to U.S. Government End Users), 9 (Term and Termination), 12 (Governing Law), and 13 (General Provisions). Orbitera reserves the right, in its sole discretion, to change, cease to provide or discontinue support for the Software at any time.
10. Third-Party Beneficiaries.
You acknowledges and agrees that Orbitera’s licensors are third party beneficiaries of this Agreement, with the right to enforce the obligations set forth herein with respect to the respective technology of such licensors and/or Orbitera.
11. Third Party Software.
The Software may contain third-party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located at http://orbitera.com/app/third-party-eula (or a successor website thereto) and are made a part of and incorporated by reference into this Agreement.
12. Governing Law.
This Agreement and all matters arising from or related to this Agreement (including its validity and interpretation), will be governed and enforced by and construed in accordance with the substantive laws in force in the State of California. The courts of Orange County, California shall have non-exclusive jurisdiction over all disputes relating to this Agreement. This Agreement will not be governed by the following, the application of which is hereby expressly excluded: (a) the conflict of law rules of any jurisdiction, (b) the United Nations Convention on Contracts for the International Sale of Goods, and (c) the Uniform Computer Information Transactions Act, as enacted in any jurisdiction.
13. General Provisions.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. Updates and upgrades may be licensed by Orbitera with additional or different terms. This is the entire agreement between Orbitera and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software. You agree to comply with all applicable laws and regulations pertaining to this Agreement.
THIS DOWNLOAD LICENSE AGREEMENT, ITS ATTACHMENTS AND ALL DOCUMENTS INCORPORATED BY REFERENCE (COLLECTIVELY, THE “AGREEMENT”) IS A LEGAL CONTRACT BETWEEN YOU (“YOU” OR “CUSTOMER,” EITHER AN INDIVIDUAL OR THE ENTITY ON WHOSE BEHALF YOU ARE EXECUTING THIS AGREEMENT) AND ZOOMDATA INC. (“WE”, “US”, “ZOOMDATA”) WHICH GOVERNS THE DOWNLOAD, INSTALLATION AND USE OF THE ZOOMDATA SOFTWARE (THE “SOFTWARE”) AS DESCRIBED HEREIN. YOU AND US ARE ALSO COLLECTIVELY REFERRED TO AS THE PARTIES. BY DOWNLOADING, INSTALLING, USING OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF YOUR ACCEPTANCE OF THIS AGREEMENT.
THIS SOFTWARE IS BEING LICENSED AND NOT SOLD TO YOU. ZOOMDATA PERMITS YOU TO DOWNLOAD, INSTALL AND USE THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
1. DEFINITIONS. Capitalized terms not otherwise defined herein have the meanings set forth below:
“Affiliate” means, with respect to any person or entity, any other person or entity that directly or indirectly Controls or is Controlled by such person or entity, from time to time, but only for so long as such Control exists. "Control" and its grammatical variants means (i) a general partnership interest in a partnership, or (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors.
“Cloud Marketplace” means an online storefront operated by a cloud service provider in which customers can participate in trials, purchase software applications and services that are built on, integrate with or complement the cloud provider's offerings. Cloud Marketplaces are operated by Amazon Web Services, Microsoft Azure and Google Cloud Platform.
“Documentation” means all manuals and end user documentation regarding the proper installation and use of the Software that Zoomdata makes available on its website.
“Embedded” means, the Zoomdata software technically incorporated into a Customer offering to Customer Tenant. For clarification this means user access not a sublicense.
“Evaluation License” means the right to use the Licensed Products in accordance with Section 3.1.
“Licensed Product” means the Software and Documentation.
“License Term” means the term of the license for a specific Licensed Product, as set forth on an Order Form.
“Order Form” means the document through which Customer orders and/or purchases Licensed Products under this Agreement. Order Forms hereunder must reference this Agreement and are incorporated by reference execution (i.e. signature) of both parties. Access to Licensed Products shall be made only against written Orders Forms expressly accepted by Zoomdata. In the event of any conflict between the terms and conditions of this Agreement and those of any Order Form, the terms and conditions of this Agreement shall control. No pre-printed or boilerplate terms of any purchase order issued by Customer to Zoomdata shall have any binding effect against Zoomdata. Zoomdata may refuse to accept any Order Form, in its sole discretion.
“Production License” means the right to use the Licensed Products in accordance with Section 3.2.
“Software” means the object code version of the Zoomdata Software made available to You, as specified in an Order Form, and any Updates that may be made available to You by Zoomdata in its discretion, under this Agreement.
“Support Services” refer to the technical support services provided by Zoomdata, which may include Updates when and if available. Zoomdata provides support services see https://www.zoomdata.com/support-packages.
“Update” means any bug fixes, patches or new versions of the Software that have been produced primarily to overcome defects in the Software without significantly altering the functionality of the Software. Updates do not include any software that is marketed by Zoomdata as a different product. Zoomdata shall determine in its discretion whether any software is an Update or a different product.
“Website” means Zoomdata’s website at www.zoomdata.com or such other website(s) designated by Zoomdata, from which You can acquire the Licensed Products and Services.
“Your Data” means Your internally generated data and information which is accessed, processed, manipulated or analyzed by means of the Software.
“Zoomdata Authorized User” means any individual (employees, agents and contractors) of Customer acting on Customer’s behalf in the operation of Customer’s own business to whom Zoomdata has issued a password, key or other authorization to create a user account to access and use the Software. Any Zoomdata Authorized User that is defined by a generic term may only be used by a single individual. All Zoomdata Authorized Users from You and/or Your Affiliates who have identifiers listed as users of the Software are included in aggregate in the total number of Zoomdata Authorized Users.
“Zoomdata Server License” means a non-exclusive, non-transferable, non-sublicenseable license to install and use the Software solely for your internal business purposes, solely on the number of physical servers specified on an accepted Order Form, which servers are under your management and control.
“Zoomdata Right To Deploy (RTD) License” means a non-exclusive, non-transferable, non-sublicenseable license to install and use the Software on systems under your management and control solely for your internal business purposes subject to the restrictions set forth in an accepted Order Form.
2. ORDERING AND PURCHASES.
Access to Licensed Product shall be made only against written Order Forms accepted by Zoomdata. This Agreement contemplates the execution by the parties of one or more Order Forms. . With respect to an Order Form, the terms “Zoomdata” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order Form, the Order Form will be considered a two party agreement between such entities, and Zoomdata will separately invoice the Customer named in the Order Form for the associated subscription fees. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Order Forms.
3. LICENSE GRANTS.
3.1 Evaluation License. Subject to your compliance with the terms and conditions of this Agreement, Zoomdata grants to You a royalty-free, non-exclusive, non-transferable, non-sublicenseable, revocable, limited license during the License Term to You and your Affiliates to use the Licensed Products for testing and evaluation to determine whether to acquire a Production License. Under this Evaluation License you have the right to: (i) download and install one copy of the Software on one server and one instance; (ii) download, install, modify and use the Documentation and Zoomdata API as necessary to exercise the rights granted to you in 3.1(i); and (iii) to use, operate and access the Licensed Products solely for evaluation for Your internal business purposes by no more than five (5) Zoomdata Authorized Users for a maximum of thirty (30) days from download date. For purposes of clarity, “your internal business” purposes shall include the right to access the features and functions of the Software by your Zoomdata Authorized Users to analyze data on behalf of and support Your existing customers.
3.2 Production License. Subject to your compliance with the terms and conditions of this Agreement, and provided Zoomdata has accepted an Order Form for such license, Zoomdata hereby grants to you and your Affiliates a worldwide, non-transferable, non-exclusive, limited license during the License Term to install and operate the executable object code form of the Software and to use the Documentation in support of such authorized use of the Software for the applicable License Term for Your internal business purposes by up to the number of Zoomdata Authorized Users set forth in the applicable Order Form.
You are permitted to make such copies of the Documentation as are reasonably necessary for your use of the Software for Your internal business purposes. As part of your Production License, Zoomdata provides support services for– see https://www.zoomdata.com/support-packages.
If you are licensing through a Cloud Marketplace, your license is limited to an internal business use only and accessed by employees only. The license cannot be used for external use, embedding in an external use application, third party applications for any externally accessed application.
3.3. Evaluation Process. If You requested a free of charge Evaluation License for the Software (via the Website or other means) then Zoomdata will make the Software available for You to download from the Website, subject to Your acceptance of this Agreement. There is no fee payable for an Evaluation License. Zoomdata provides limited support services for Evaluation Licenses – see https://www.zoomdata.com/support-packages. An Evaluation License terminates automatically after thirty(30) days from the download date, unless extended by agreement with Zoomdata on an Order Form or upon specific approval from Zoomdata.
3.4. Upgrading to a Production License. You may upgrade an Evaluation License to a Production License by completing and agreeing to an Order Form and agreeing to pay the relevant Fees and Taxes. The Production License and any Support Services will be provided on the terms and conditions of this Agreement. When you acquire a Production License, then You acquire a license for the Software under the terms of Section 3.2 and, and Support Services in accordance with the support terms at support.zoomdata.com. You must install Updates promptly, especially Updates that have been made available for security issues.
3.5 Restrictions. You may not, and shall not permit or induce any third party to: (i) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, underlying ideas or algorithms of any components of the Software (except as permitted by applicable law); (ii) alter, merge, modify, translate, adapt in any way, or prepare any derivative work based upon the Software or Documentation; (iii) encumber the Software or Documentation or any copy thereof; (iv) remove any proprietary notices from the Software or Documentation or other materials furnished or made available hereunder. In addition, Customer agrees to comply with all applicable local, state, national, and international laws, rules and regulations applicable to Customer’s use of the Licensed Product. Customer may use the Licensed Products only for Customer’s internal business purposes. Except as otherwise permitted in this Agreement, in addition to Customer’s rights to operate/use the Software for its purposes, Customer may operate the Software only on Customer’s own computer(s), hosted computers controlled by Customer, and/or internal networks, for the benefit of Customer or Customer’s customers. Customer shall not copy the Licensed Products, except and for archival or backup purposes or as required by normal installation procedures specified by Zoomdata. Customer may not use the Licensed Products in any fashion that would promote, encourage, or allow reuse or redistribution of the Licensed Products in whole or in part, either separately or included with a product or service. You acknowledge that you shall be responsible for your Affiliates and any acts and omissions by such Affiliates that, if undertaken by you, would constitute a breach of this Agreement shall be deemed a breach of this Agreement by you.
3.6. Software Support. You may contact Zoomdata for technical support or questions regarding the Licensed Products at email@example.com or visit support.zoomdata.com.
4. OWNERSHIP. Zoomdata, its suppliers and/or its licensors own all worldwide right, title and interest in and to the Licensed Products, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Except as expressly stated in this Agreement, Zoomdata does not grant You any intellectual property rights in the Licensed Products, and all right, title, and interest in and to all copies of the Licensed Products not expressly granted remain with Zoomdata, its suppliers and/or its licensors. The Licensed Products are copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You may not remove or obscure any copyright, trademark, and/or any other intellectual property or proprietary notices from the Licensed Products.
5. FEES AND PAYMENT. The fees (“Fee”) payable for the Licensed Products will be set forth in the Order Form. The Fees will be invoiced in accordance with the relevant Order Form and if not specified on the Order Form are due within 30 days of receipt of invoice. Customer will pay the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on Zoomdata’s net income or arising from the employment relationship between Zoomdata and its personnel) imposed in connection with the Fees paid for the Licensed Products, which are exclusive of these taxes. In addition to its other rights and remedies, Zoomdata reserves the right, without liability to the Customer, to suspend and/or revoke the licenses granted herein if Customer’s account becomes more than thirty (30) days past due until all accounts are paid in full. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
6. TERM. This Agreement commences on the date of Your agreement to the terms of this Agreement (“Effective Date”) and will continue if you downloaded for evaluation purposes for (i) thirty (30) days from the Effective Date or if You enter into an Order Form (ii) the twelve month term or other specified length from the Effective Date of the Order Form (the "License Term"). This Agreement and any license rights granted hereunder will automatically terminate at the end of the Term. Any password(s), license key(s) or other authorization provided may automatically expire and may cause the Software to become non-operational at the end of the License Term.
7. EFFECT OF TERMINATION. Upon any expiration or termination of this Agreement, the rights and licenses granted hereunder will automatically terminate, and You agree to immediately cease using the Licensed Products and to return or destroy all copies of the Licensed Products, including any Documentation, and other Confidential Information in your possession or control and certify in writing the completion of such return or destruction. Section 1 (Definitions), Section 3.5 (Restrictions), Section 4 (Ownership), Section 7 (Effect of Termination), Section 8 (Software Verification and Audit), Section 9 (Your Data), Section 10 (Disclaimer of Warranties), Section 11 (Responsibilities for Selection and Use), Section 12 (Third Party Products), Section 13 (Indemnification), Section 14 (Limitation of Liability), Section 15 (Confidentiality), and Sections 16 (Severability) through 21 (General) shall survive termination of this Agreement
8. SOFTWARE VERIFICATION AND AUDIT. At Zoomdata's written request, You will furnish Zoomdata with a certification signed by Your authorized representative verifying that the Licensed Products are being used in accordance with the terms and conditions of this Agreement. Zoomdata may audit Your use of the Licensed Products to ensure that You are in compliance with the terms of this Agreement. Any such audit will be scheduled at least (30) days prior with written notice, conducted during regular business hours at Your facilities, will not unreasonably interfere with Your business activities and will be in compliance with Your reasonable security procedures. If an audit reveals that You have exceeded the number of Zoomdata Authorized Users, the scope of Your license grant or any other material term or condition of this Agreement during the period audited, then Zoomdata may terminate this Agreement upon written notice and Zoomdata may invoice You, and You will promptly pay, Zoomdata's reasonable costs of conducting the audit. The foregoing is in addition to any rights and remedies available to Zoomdata. This Section shall survive expiration or termination of this Agreement for a period of three (3) years.
9. YOUR DATA. As between the Parties, You retain all right, title and interest in and to Your Data, subject to Zoomdata's ownership rights in the Licensed Products as specified in Section 4 (Ownership) above. You are responsible for the performance, accuracy, legality and security of Your Data, as used in connection with the Licensed Products and otherwise. You shall ensure that Your use of the Licensed Products, and all access, use and processing of Your Data is at all times compliant with Your privacy policies and all applicable local, state, federal and international law, regulations and conventions, including all applicable laws regarding the collection, use, and sharing of personal data of Your customers, employees or other persons using the Licensed Products.
10. DISCLAIMER OF WARRANTIES. You agree that neither Zoomdata nor its Affiliates, directors, officers, employees, agents or representatives shall be responsible for any loss, destruction or alteration of content, Your Data or other information resulting from Your use of the Licensed Products. ZOOMDATA, ITS AFFILIATES, LICENSORS AND SUPPLIERS PROVIDE THE LICENSED PRODUCTS “AS IS” AND MAKE NO WARRANTY OF ANY KIND REGARDING THE LICENSED PRODUCTS. ZOOMDATA EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ZOOMDATA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED PRODUCTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ZOOMDATA OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. YOU AGREE THAT, AS BETWEEN YOU AND ZOOMDATA, YOU ARE RESPONSIBLE FOR THE ACCURACY AND QUALITY OF YOUR DATA INPUT INTO ANY LICENSED PRODUCTS. BECAUSE THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES OR JURISDICTIONS, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
11. RESPONSIBILITIES FOR SELECTION AND USE. You are responsible for the supervision, management and control of the use of the Licensed Products, and output of the Licensed Products, including, but not limited to: (i) selection of the Licensed Products to achieve Your intended results; (ii) determining the appropriate uses of the Licensed Products in Your business, (iii) establishing adequate independent procedures for testing and evaluating the Licensed Products results; (iv) establishing adequate backup to prevent loss of Your Data in the event of hardware or software malfunction and (v) adequate data security measures against unauthorized access to, use of, or disclosure of Your Data.
12. NOT USED
13. INDEMNIFICATION. You agree to indemnify, hold harmless, and defend Zoomdata (including all of its officers, employees, directors, subsidiaries, representatives, Affiliates and agents) and Zoomdata's licensors and suppliers (collectively, the “Zoomdata Parties”) from and against all liabilities, damages, costs and expenses, including attorneys’ fees and expenses incurred by any Zoomdata Parties in connection with any third party claims, proceedings or lawsuits that arise or result from Your Data, Your breach of any representation, warranty or covenant set forth in this Agreement, and the acts or omissions of You or your Zoomdata Authorized Users. In the event of such third-party claim, Zoomdata will: (i) promptly notify you in writing of the claim; (ii) provide you, at your expense, with all reasonable information and assistance to defend or settle the claim, and (iii) grant you the sole authority and control of the defense and settlement of the claim, provided that you will not settle without the advance written consent of Zoomdata to the terms of the settlement.
14. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ZOOMDATA'S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE TIMES THE FEES PAID BY LICENSEE TO ZOOMDATA DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE ZOOMDATA PARTY’S LIABILITY. IN NO EVENT WILL ZOOMDATA BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE LICENSED PRODUCTS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE LICENSED PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ZOOMDATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND ZOOMDATA WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS AND EXCLUSIONS.
WITHOUT LIMITING THE FOREGOING, ZOOMDATA WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM ANY AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE FUNCTIONS OF THE LICENSED PRODUCTS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. ZOOMDATA IS ACTING ON BEHALF OF ITS AFFILIATES, LICENSORS AND SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY, BUT IN NO OTHER RESPECTS AND FOR NO OTHER PURPOSES.
15. CONFIDENTIALITY. You agree that You will hold the Licensed Products, Feedback, and related information (collectively, “Confidential Information”) in strict confidence and will not disclose Confidential Information to any third party. You will use the same efforts to protect the Confidential Information from unauthorized access, reproduction, disclosure, or use as it uses in connection with its own information of a similar nature, provided that such efforts shall at least be reasonable. In the event You become aware of any unauthorized use or disclosure of Confidential Information, You will notify Zoomdata immediately in writing and will give full cooperation to minimize the effects of such unauthorized use or disclosure. You may use the Confidential Information solely as permitted under this Agreement, and for no other purpose whatsoever. You will grant access to the Confidential Information only to Your employees and contractors who (i) have a need for access to the Confidential Information, and (ii) have executed a written agreement with You that requires the employee or contractor to protect third party confidential information on terms at least as protective as the terms of this Agreement. You will ensure that Your employees and contractors comply with these confidentiality requirements.
16. SEVERABILITY. Unless otherwise provided herein, all rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
17. EXPORT. You will comply fully with all relevant export laws and regulations of the United States of America and any other country ("Export Laws") where You use any of the Licensed Products. You certify that You are not on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department's List of Specially Designated Nationals, and the Commerce Department's List of Denied Persons or Entity List. You further certify that You shall not export, re-export, ship, transfer or otherwise use the Licensed Products in any country subject to an embargo or other sanction by the United States of America and that You shall not use the Licensed Products for any purpose prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses.
18. PUBLICITY. You agree that Zoomdata may publish a brief description highlighting your deployment of the Licensed Products and identify You as a Licensed Products evaluator on any of Zoomdata's websites, press releases, and/or other marketing materials.
19. FEEDBACK. If You send or transmit any communications, comments, questions, suggestions, or related materials to Zoomdata, whether by letter, e-mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to the Licensed Products, including, without limitation, new features or functionality relating thereto, all such Feedback is, and will be exclusively owned by Zoomdata. You hereby assign all right, title, and interest in, and Zoomdata is free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, and all applicable intellectual property rights relating to the Feedback, whether or not patentable or copyrightable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You agree and understand that Zoomdata is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.
20. CHOICE OF LAW AND DISPUTES; INJUNCTIVE RELIEF. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Virginia and the parties hereby consent to personal jurisdiction and venue therein. If a dispute arises between You and Zoomdata, and either You or Zoomdata files suit in any court of competent jurisdiction to enforce rights under this Agreement, then the prevailing party shall be entitled to recover from the other party all costs of such action or suit, including, but not limited to, investigative costs, court costs and reasonable attorneys' fees (including expenses incurred to collect those expenses). You acknowledge and agree that any use of the Licensed Products in breach of this Agreement is likely to cause Zoomdata irreparable harm for which damages will not be an adequate remedy, and that Zoomdata will, therefore, be entitled to temporary, preliminary, and permanent injunctive relief in any court of competent jurisdiction to restrain such breach, without prejudice to any other right or remedy.
21. GENERAL. All notices required or permitted under this Agreement will be in writing and delivered by email, and in each instance will be deemed given upon receipt. Please note that at all times You are responsible for providing Zoomdata with Your most current e-mail address. In the event that the last e-mail address that You have provided Zoomdata is not valid, or for any reason Zoomdata is not capable of delivering notice to You, Zoomdata’s dispatch of an e-mail containing such notice will nonetheless constitute effective notice. You may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Any attempt to assign this Agreement other than as permitted herein will be null and void. Zoomdata may assign this Agreement freely. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties' permitted successors and assigns. This Agreement constitutes the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to the subject matter hereof. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
22. QUESTIONS OR ADDITIONAL INFORMATION. If you have questions regarding this Agreement, or wish to obtain additional information, please contact us at: Zoomdata Inc., 11921 Freedom Drive, Suite 750, Reston VA 20190 and/or firstname.lastname@example.org.
11921 Freedom Drive, Suite 750
Reston VA 20190
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