CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT, USE OF ZENTRY SECURITY, INC. (“ZENTRY”) PRODUCT(S) AND ANY UPDATES THERETO (THE “PRODUCTS”), INCLUDING THE SOFTWARE CONTAINED IN THE PRODUCTS (THE “SOFTWARE”) IN ANY MANNER CONSTITUTES ACCEPTANCE BY YOU (“CUSTOMER”) OF THESE PROVISIONS. ZENTRY SHALL NOT BE BOUND BY ANY ADDITIONAL AND/OR CONFLICTING PROVISIONS IN ANY ORDER, RELEASE, ACCEPTANCE OR OTHER WRITTEN CORRESPONDENCE FROM CUSTOMER UNLESS EXPRESSLY AGREED TO IN WRITING BY ZENTRY. ALL SALES ARE CONSIDERED FINAL. IF CUSTOMER DOES NOT AGREE TO THE PROVISIONS OF THIS AGREEMENT, CUSTOMER SHALL NOT USE THE PRODUCTS IN ANY MANNER AND CUSTOMER SHALL PROMPTLY NOTIFY ZENTRY (OR ZENTRY DISTRIBUTOR IN THE CASE CUSTOMER DID NOT RECEIVE THE PRODUCT DIRECTLY FROM ZENTRY) IN WRITING TO DISCUSS FURTHER.
1. License; Title. Subject to the terms of this Agreement, Zentry grants Customer a nonexclusive, nontransferable license to use the object code version of the Software and the accompanying documentation (“Documentation”) for Customer’s internal business purposes in conjunction with Customer’s use of the Products. Customer agrees that Customer will not attempt, to reverse engineer, disassemble, modify, translate, or create derivative works of the Products, in whole or part. Customer may not rent, lease, loan, distribute or sublicense the Products. Title to and ownership of the Software and Documentation, and any updated, modified or additional parts thereof, and all copyright, patent, trade secret, trademark and other intellectual property rights embodied in the Products, shall at all times remain the property of Zentry or its licensors. The Products shall be deemed accepted upon receipt. Should Customer experience any problems with the Products any time after acceptance, Customer’s sole and exclusive remedies shall be that set forth in Section 2 below.
2. Warranty to Customer.
2.1 Limited Warranty. Zentry warrants to Customer that during the three hundred sixty-five (365) day period following Customer’s receipt of the Products, the Software portions of the Products will perform substantially in accordance with the then-current appropriate Documentation. In the event of a failure of any Product to comply with the foregoing warranty during the applicable warranty period (a “Defect”), Zentry shall, at its option, repair or replace the Product or refund the fees paid by Customer for such Product (following Customer’s return of such Product), or provide a workaround for the Defect. The foregoing sets forth Customer’s sole and exclusive remedies for breach of the above warranties. Replacement Products will be warranted for the remaining warranty period of the original Products.
2.2 Limitation. The warranties set forth above shall not apply to (i) any third party software or hardware, whether or not such third party software or hardware is provided by Zentry (and Customer agrees to any additional terms and conditions relating the third party software or hardware which are specific to Zentry suppliers as described in the Documentation, which are incorporated by reference herein); (ii)any Products which have been modified or repaired, except by Zentry; or (iii) any Products which have not been maintained in accordance with any handling or operating instructions supplied by Zentry or have been subjected to unusual physical or electrical stress, misuses, negligence or accidents.
2.3 Disclaimer of Warranties. EXCEPT AS SET FORTH ABOVE, ZENTRY MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE PRODUCTS. ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION WARRANTIES REGARDING SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED.
3. Limitation of Liability. IN NO EVENT WILL ZENTRY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS OR LOST SAVINGS, HOWEVER CAUSES, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, EVEN IF ZENTRY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, ZENTRY’S TOTAL LIABILITY TO CUSTOMER ARISING FROM OR IN RELATION TO THIS AGREEMENT OR THE PRODUCTS SHALL BE LIMITED TO THE TOTAL PAYMENTS TO ZENTRY UNDER THIS AGREEMENT FOR THE RELEVANT PRODUCTS, IN NO EVENT WILL ZENTRY BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO DAMAGES ARISING FROM DEATH OF PERSONAL INJURY TO PERSONS OR TANGIBLE PROPERTY IN ANY JURISDICTION WHERE SUCH LIMITATION IS PROHIBITED BY APPLICABLE LAW.
4. Term and Termination. The term of this Agreement shall commence upon your use of the Products in any manner and continue unless terminated in accordance with this Section. Zentry may terminate this Agreement at any time upon (i) bankruptcy, insolvency or receivership of Customer, or (ii) any material defaults by Customer of this Agreement not cured within thirty (30) days after Customer reserves written notice thereof. Except for the first sentence of Section1 (“License; Title”), the provisions of this Agreement shall survive any termination of this Agreement.
5. Export Control. In exercising its rights under this Agreement, Customer agrees to comply fully with all export controls and regulations imposed on the Products by the U.S. and any country, organization or governmental body within whose jurisdiction Customer does business.
6. Governmental Rights. If Products are being acquired by the U.S. Government, the Software and related Documentation is commercial computer software and commercial computer software documentation developed exclusively at private expense, and (i)if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if acquired by or on behalf of units of the Department of Defense (“DoD”) shall be subject to the terms of this commercial computer software licenses as specified in 48 C.F.R. 227.7202, DoD FAR Supplement and its successors.
7. General Provisions. Customer shall not assign this Agreement or transfer any of the rights or obligations under this Agreement without the prior written consent of Zentry. This Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. This Agreement will be governed by the laws of California, without regard to that body of law controlling conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. In the event of any claim arising out of this Agreement, the parties hereby submit to the jurisdiction of the federal and state courts located in Santa Clara County, California, as applicable. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement signed on behalf of Zentry and Customer. No waiver will be implied from conduct or failure to enforce rights nor effective unless in writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found unenforceable, that part will be enforced to the maximum extent permitted.