Terms and Conditions
ZENTRY TERMS & CONDITIONS
These
Terms and Conditions (“Agreement”) are made by and between Zentry Security,
Inc. (“Zentry”) and the party (“Customer”) subscribing to Zentry
services (“Services”) as specified in an agreed online order or signed order
form (“Order”). Customer may be entering into this Agreement directly
with Zentry, or through an authorized reseller of the Zentry Services (“Authorized
Reseller”). This Agreement may be accepted by Customer through a signed
written form of this Agreement, or through Customer’s acceptance online of this
Agreement expressly or by Customer’s access to and use of the Zentry Services, or
by attachment to or incorporation of this Agreement into an agreement between Customer
and an Authorized Reseller.
1.
LICENSE AND SUPPORT. Subject
to the terms, conditions and restrictions set forth in this Agreement,
including payment of the subscription fees (“Fees”) set forth in the
Order executed with an Authorized Zentry reseller, Zentry grants Customer a
non-exclusive, non-transferable, non-sublicensable, right and license, to
access and use, solely for its internal business purposes, the subscription
service identified in the Order, including all software and other components
thereof (“Services”), in accordance with the user documentation provided
with the Service (“Documentation”) for the term set forth in the
applicable Order (“Subscription Term”).
Use of the Services is restricted and subject to the limitations set
forth in this Agreement including, but not limited to the Order. During the
Subscription Term, Zentry will support the Service in accordance with its then
current Support and Service Level Policy at zentrysecurity.com/support.
2.
TERM AND TERMINATION
2.1.
Term of Agreement. This Agreement will commence on the Effective
Date and will, unless earlier terminated, continue in effect for one (1) year from
the Services Start Date, after which it will automatically renew for successive
one (1) year periods at Zentry’s then current rates unless a party gives
written notice of its intention not to renew at least thirty (30) days prior to
the end of the then-current initial term or renewal term. This Agreement will
survive for so long as any Order remains in effect; provided that no new Order
Forms may be executed after the termination or expiration of this Agreement.
2.2.
Termination
2.2.1.
Termination for Breach. Either party may terminate this Agreement,
and/or any Order in effect at the time, for cause upon a material breach by the
other party, which default either remains uncured for thirty (30) days after
written notice thereof is given to the defaulting party or is incapable of
being cured, in which case the Agreement shall terminate upon the date of the
default notice or such later date specified in such notice, if any. Unless
otherwise specifically set forth in the applicable Order, upon the termination
or expiration of this Agreement, then each and every Order shall also
simultaneously terminate and/or expire.
2.2.2.
Termination for Other Causes. Either party may immediately
terminate this Agreement and/or any Order in effect at the time, in the event
of any of the following: (i) the other party ceases to carry on its business;
(ii) the institution of bankruptcy, receivership, insolvency, reorganization or
other similar proceedings by or against the other party, if such proceedings
have not been dismissed or discharged within thirty (30) calendar days after
they are instituted; (iii) the appointment of a receiver for all or
substantially all of the other party’s assets; or (iv) any change in applicable
laws that make continued performance under this Agreement unlawful or
commercially unreasonable.
3.
FEES; PAYMENT TERMS. Fees
are specified in the Order Form and payable as specified in the Order to Zentry
or an Authorized Reseller through whom Customer ordered. Payment Fees are due thirty (30) days from
the date of invoice. Customer shall be responsible for all taxes on the Fees,
except for taxes on Zentry’s or the Authorized Reseller’s income. Unless
otherwise indicated on an Order or Statement of Work (“SOW”), all fees will be invoiced upon the Services Start Date for
the Subscription Term, and on the date of the renewal Subscription Term. If Customer
fails to pay Fees within fifteen (15) business days of payment due date, Zentry
may suspend or terminate Customer’s access to the Services or terminate this Agreement.
All Orders are non-cancelable.
4.
RESTRICTIONS.
Customer shall not: (i) decompile, disassemble, reverse engineer or attempt to
reconstruct, identify or discover any source code, underlying ideas, user
interface techniques or algorithms of the Service or disclose any of the
foregoing; (ii) encumber, transfer, manufacture, distribute, sell, sublicense,
assign, provide, lease, lend, use for timesharing or service bureau purposes,
or otherwise use (except as expressly provided herein) the Services or
Documentation; (iii) copy, modify, adapt, translate, incorporate into or with
other services, or create a derivative work of any part of the Services or
Documentation; or (iv) attempt to circumvent any user limits, timing or use
restrictions that are built into the Service.
5.
OWNERSHIP.
5.1.
Ownership. Customer acknowledges and agrees that as
between Customer and Zentry, all right, title and interest, including all
intellectual property rights of any kind in the Services and Documentation are
owned by Zentry and its licensors, if any.
Any and all enhancements, modifications, corrections and derivative
works that are made to the Service will be considered part of the Service for
the purposes of this Agreement and will be owned by Zentry. Without limiting the foregoing, Zentry will
own, free from restrictions, any analytics and other statistical, aggregated,
and/or anonymized data that it collects, derives or generates in connection
with providing or operating the Services.
All software is licensed not sold.
5.2.
Feedback. Customer may choose, but is not obligated to
provide Zentry with oral or written feedback related to its use of the Services
or Documentation. Any materials,
information, ideas, concepts, feedback and/or know-how provided by Customer to Zentry
concerning the Services or Documentation and any information reported
automatically through the Services including, but not limited to statistics or
other analytic data on Customer’s use of the Services (“Feedback”) will
be the property of Customer and Customer hereby grants Zentry a perpetual, worldwide,
fully transferable, irrevocable, royalty free license to use, reproduce,
modify, create derivative works from, distribute and display the Feedback in
any manner and for any purpose.
6.
PUBLICITY. Customer
agrees that Zentry may use its name and logo, without endorsement, in a listing
of Zentry customers and in its customer references in its sales and marketing
materials.
7.
CONFIDENTIALITY. Each party (“Recipient”) shall maintain as
confidential and shall not disclose (except to its employees, accountants,
attorneys, advisors, affiliates, outsourcers and third party service providers
of Recipient with a need to know in connection with Recipient’s performance
under this Agreement, and who have been advised of the obligation of
confidentiality hereunder), copy or use for purposes other than the performance
of this Agreement, any information which relates to the other party’s
(“Discloser”) business affairs, trade secrets, technology, research,
development, pricing or terms of this Agreement (“Confidential Information”),
and Recipient agrees to protect all received Confidential Information with the
same degree of care that it would use with its own Confidential Information and
to prevent unauthorized, negligent or inadvertent use, disclosure or
publication thereof, but in no event less than reasonable care. Breach of this
Section may cause irreparable harm and damage to Discloser. In addition to all other remedies available
at law or in equity, Discloser shall have the right to seek equitable and
injunctive relief, and to recover the amount of damages (including reasonable
attorneys’ fees and expenses) incurred in connection with such unauthorized
use. Recipient shall be liable to Discloser for any use or disclosure in
violation of this Section by Recipient or its affiliates, employees, third
party service providers or any other related party. Confidential Information shall not include
information that Recipient can show (a) is already known prior to the
disclosure by Discloser; (b) is or becomes publicly known through no breach by
Recipient of this Agreement; (c) is independently developed without the use of Discloser’s
Confidential Information as shown by the contemporaneous written records of
Recipient; (d) information that is obtained from a third party, and that third
party is not, in good faith belief to Recipient, under any legal obligation of
confidentiality; or (e) Recipient receives written permission from the Discloser
for the right to disclose any Confidential Information. Upon termination of
this Agreement, Recipient shall within
thirty (30) days return all Confidential Information to the Discloser, and
Customer shall cease use of the Service and Documentation. In the event Recipient is required to disclose,
pursuant to a judicial order, a requirement of a governmental agency or by
operation of law, then Recipient will promptly provide Discloser written notice
of such requirement and take commercially reasonable measures to avoid or limit
disclosure and to obtain confidential treatment or a protective order and allow
Recipient to participate in the proceeding.
Any disclosure will be the minimum disclosure as recommended by Recipient’s
legal counsel and no disclosure will remove the obligations of confidentiality
to any remaining Confidential Information nor permit any other disclosure of
the Confidential Information in other circumstances. Recipient’s obligations of confidentiality
will survive the expiration or other termination of this Agreement as follows:
(i) in the case of a trade secret for so long as such information constitutes a
trade secret under applicable law, (ii) in the case of non-public personal
information or any customer information the period of protection will be
indefinitely; and (iii) in all other cases for a period of three (3) years.
8.
NO WARRANTY. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW ZENTRY HEREBY DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES REGARDING THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY,
INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE,
FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR PERFORMANCE. THE SERVICES,
AND ALL BACKGROUND TECHNOLOGY, DATA, MATERIALS AND DOCUMENTATION PROVIDED BY
ZENTRY IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS
AVAILABLE” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. ZENTRY AND ITS SUPPLIERS, LICENSORS AND
AGENTS DO NOT WARRANT THAT ANY DELIVERABLES, THE SERVICES OR THE FUNCTIONS
CONTAINED THEREIN IN WILL BE CORRECT, UNINTERRUPTED, ERROR-FREE, COMPLETELY
SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE
CORRECTED. THE DELIVERABLES AND THE
SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN
THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ZENTRY IS NOT RESPONSIBLE FOR ANY DELAYS,
DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. ZENTRY DOES NOT WARRANT THE RESULTS OF USE OF
THE SERVICES OR ANY DOCUMENTATION, GOODS, TECHNOLOGY OR ANY DELIVERABLES THAT
MAY BE PROVIDED UNDER THIS AGREEMENT.
EACH PARTY ACKNOWLEDGES THAT IT HAS RELIED ON NO REPRESENTATIONS OR
WARRANTIES TO ENTER INTO THIS AGREEMENT.
SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE
STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT
APPLY TO YOU.
9.
LIMITATIONS OF LIABILITY. (a) IN NO EVENT WILL ZENTRY
OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED
TO LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, LOSS OF DATA OR ECONOMIC
ADVANTAGE AND ANY NON-ECONOMIC LOSSES, EVEN IF ZENTRY HAS BEEN ADVISED IN
ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; (b) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL
CUMULATIVE LIABILITY OF ZENTRY TO CUSTOMER FOR ALL CLAIMS ARISING UNDER OR
RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING
ATTORNEYS’ FEES, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO ZENTRY UNDER
THE APPLICABLE ORDER WITHIN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM;
(c) THIS SECTION WILL SURVIVE
TERMINATION OF THE AGREEMENT, ALLOCATES THE RISKS BETWEEN THE PARTIES, AND ARE
AN INTRINSIC PART OF THE BARGAIN. THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT WILL APPLY NOTWITHSTANDING
A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT
PERMITTED BY LAW.
10.
INDEMNIFICATION.
10.1.
Zentry Indemnity. If a third party claims that the Services
infringe any U.S. patent, copyright, or trade secret, Zentry will defend
Customer against such claim at Zentry’s expense and pay all damages finally
awarded through judgment or settlement. Zentry
shall have no liability or obligation hereunder with respect to any
infringement claim if such infringement is caused by (i) compliance with
Customer’s instructions, designs, guidelines, plans or specifications; (ii)
Customer’s use of the Services other than as specified in the applicable
Documentation; (iii) modification of the
Services by any person other than as authorized in writing by Zentry; or
(iv) the combination, operation or use of the
Services with other product(s) or services not supplied by Zentry, where
the Service would not by itself be infringing.
If such a claim is made or appears possible, Zentry may, at its option,
secure for Customer the right to continue to use the Services, modify or
replace the Services so that it is
non-infringing, or, if neither of the foregoing options is available in Zentry’s
reasonable opinion, terminate this Agreement and refund to Customer any
unamortized pre-paid fees for use of the Services. THIS PARAGRAPH STATES ZENTRY’S ENTIRE
OBLIGATION AND SOLE AND EXCLUSIVE LIABILITY TO CUSTOMER WITH RESPECT TO ANY
CLAIM OF INFRINGEMENT OR MISUSE OF INTELLECTUAL PROPERTY RIGHTS.
10.2.
Customer Indemnity. Customer will defend, indemnify, and hold
harmless Zentry and its officers, directors, employees, agents and
representatives from and against any claims or damages finally awarded by a
court of competent jurisdiction as a result of: (i) Customer’s alleged or actual use of,
misuse of, or failure to use the Services in accordance with the terms of this
Agreement; (ii) any claims that Customer violates any third party intellectual
property rights or any rights of privacy or publicity; or (iii) that Customer
has violated any applicable law with regard to Customer’s use of the Services.
10.3.
Mutual Indemnity Procedure. For purposes of this Section on indemnity,
the following terms shall have the meanings defined herein: “Claim” means all third party claims,
actions, demands, and legal proceedings of any kind. “Damages” means all liabilities,
damages, losses, judgments, authorized settlements, fines, costs and expenses
payable to a third party, including, without limitation, reasonable legal
support costs and expenses. As an
express condition to the indemnifying party’s obligation under this Section 10,
the party seeking indemnification must: (a) promptly notify the indemnifying
party in writing of the applicable Claim for which indemnification is sought;
and (b) provide the indemnifying party with all non-monetary assistance,
information, and authority reasonably required for the defense and settlement
of such Claim. The indemnifying party may select counsel for defense of the
Claim and direct the course of any litigation or other disputed proceedings
concerning the Claim. The indemnified party may select its own counsel and
direct its own defense of a Claim if it chooses to do so, but it must bear the
costs of its own counsel and any activities in any disputed proceeding
conducted by counsel of its choosing. The indemnifying party may settle any
Claim, to the extent it only seeks a money payment, with or without the consent
of the indemnified party, providing the settlement is a full and complete
settlement of all Claims and Damages against the indemnified party. The
indemnifying party must obtain the indemnified party’s prior written consent to
any settlement to the extent it consents to injunctive relief or requires any
admission of fault or any public statement or contains terms governing future
activities that would materially affect the indemnified party’s business or
interests, said consent not to be unreasonably withheld, conditioned, or
delayed. The indemnifying party’s
indemnity obligation will be waived if (i) the indemnified party fails to give
the indemnifying party prompt written notice of any claim and such delay limits
or forecloses any defense or counterclaim the indemnifying party could have
raised but for the delay; or (ii) the indemnified party enters into any
settlement without the indemnifying party’s express written consent.
11.
GENERAL.
11.1.
Entire Agreement; Order of
Precedence. This
Agreement including the applicable Order is the complete and exclusive
statement of the agreement between Zentry and Customer regarding the Zentry
Services, and supersedes all proposals or prior agreements, oral or written,
and all other communications between the parties relating to the subject matter
hereof. This Agreement is in addition to, and does not supersede, the terms and
conditions of any agreement Customer may have with an Authorized Reseller of
Zentry Services. If this Agreement conflicts with any of the terms or
conditions of any Order or Customer’s agreement with an Authorized Reseller,
then, unless otherwise provided herein, the terms and conditions of such Order
will control solely with respect to the products or services covered by such
Order but only with respect to Section 3 (“ FEES; PAYMENT TERMS”) and in all
other instances as to Zentry and Customer the terms and conditions of this
Agreement will govern and control. Any
purchase orders or other documentation issued by Customer shall be deemed to be
for Customer’s convenience only and, notwithstanding acceptance of such orders or
documents by Zentry, such purchase orders or other documents will be of no
force or effect and will not act to amend, modify, supplement or override this
Agreement.
11.2.
Waiver.
Any waiver or modification of the provisions of this Agreement will be
effective only if in writing and signed by the party against whom it is to be
enforced. If any provision of this
Agreement is held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby. A waiver of any provision, breach or default by either party
or a party’s delay exercising its rights shall not constitute a waiver of any
other provision, breach or default.
11.3.
Independent Contractor. The relationship created by this Agreement is
one of independent contractors, and not partners, franchisees or joint
venturers. No employees, consultants, contractors or agents of one party are
employees, consultants, contractors or agents of the other party, nor do they
have any authority to bind the other party by contract or otherwise.
11.4.
Notices.
All notices or other communications required to be given hereunder shall be in
writing and delivered either by email with receipt confirmed, U.S. mail,
certified, return receipt requested, postage prepaid; by overnight courier; or
as otherwise requested by the receiving party, to the address first listed
above. Notices shall be effective upon
their receipt by the party to whom they are addressed, or in the case of U.S.
mail, within five (5) of the date of mailing.
11.5.
Assignment.
This Agreement may not be assigned by Customer by operation of law or otherwise
without Zentry’s prior written consent.
11.6.
Compliance with Laws.
Each party will be responsible for compliance with all legal requirements
related to its performance under this Agreement, including all applicable U.S.
export laws or similar laws in jurisdictions in which Customer operates and
laws related to the protection, privacy and disclosure of data and information.
11.7.
Force Majeure.
Neither party will be responsible for any failure to perform, except a failure
to pay money, due to causes beyond its reasonable control, including, but not
limited to, acts of God, terrorism, war, riot, embargoes, fire, floods,
earthquakes, or strikes (each a “Force Majeure Event”) provided that
such party gives prompt written notice to the other party of the Force Majeure
Event. The time for performance will be
extended for a period equal to the duration of the Force Majeure Event;
provided that a party may terminate this Agreement in the event the other party
is prevented from performing by the Force Majeure Event for a period longer
than thirty (30) days, and, if Customer is the terminating party, Zentry shall
provide a refund of Fees on a pro rata basis applicable to the remainder of the
Subscription Term.
11.8.
Governing Law and Disputes.
This Agreement will be governed by and interpreted in accordance with the laws
of the State of California, without giving effect to any conflict of law
principles that would require the application of the substantive or procedural
laws of a different jurisdiction. In the
event that any dispute between the parties arises out of or is related to any
of the provisions of this Agreement, and/or the performance or termination
thereof, the prevailing party in any such action will recover all of its costs,
including reasonable attorneys’ fees. The parties agree that United Nations
Convention on Contracts for the International Sale of Goods (1980) is
specifically excluded from application to this Agreement. Any claims for emergency or preliminary
injunctive relief may be brought in any court of competent jurisdiction. All other disputes, claims or controversy
arising out of or relating to this Agreement, or the interpretation, making,
performance, breach or termination thereof, will be subject to the exclusive
jurisdiction of the California State Courts in Santa Clara County, or if there
is federal jurisdiction, the United States District Court for the Northern
District of California, and the parties agree to submit to the personal and
exclusive jurisdiction and venue of these courts and the parties hereby waive
all defenses based upon forum non conveniens, improper venue, or personal
jurisdiction.
11.9.
Survival. The
rights and obligations of the parties contained in this Agreement that would
reasonably be considered to survive any termination or expiration of this
Agreement shall be deemed to have survived.
