Terms of Service RoadFS™ Cloud Software Terms of Service constitute an agreement (this “Agreement”) between You (“You” “Your” or “Customer”) and Zenware, Inc., an Idaho corporation (“ Zenware®”), and govern Your use of the iOS applications, Service and the Software, which is being provided to You on a subscription basis. If You are entering into this Agreement on behalf of a company or other legal entity, “You,” “Your” or the “Customer” refers to such company or legal entity, as appropriate. The number of systems and end users for which Customer has purchased the Service and Software, and the subscription rate or price for the Service and the Software, is identified on Customer’s Order Form, which is incorporated herein by this reference. All capitalized terms in this paragraph shall have the meaning set forth in Section 1 below.
“Authorized Users” means the employees, independent contractors and business partners Customer has specified in the Order Form as users authorized to access the Service and use it in Customer’s name and on Customer’s behalf.
“Back-Up Policy” means Zenware’s standard data archiving policy, posted at http://www.zenware.com/policy/backup as such policy may be amended by Zenware® in its sole discretion from time to time.
“Confidential Information” means, with respect to Zenware® , all information which Zenware® protects against unrestricted disclosure to others, including but not limited to the following information regarding the Service and Software: (i) software code in any form; (ii) programming techniques and programming concepts, methods of processing, and system designs embodied in the Service and Software; (iii) benchmark results, program listings, data structures, logic diagrams, functional specifications, and file formats; (iv) system infrastructure(s), security/architecture design(s), and operations processes; and (v) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, and techniques and processes relating to: (a) the Service and Software; (b) the research and development or investigations of Zenware® ; (c) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies; and (d) any information about or concerning any third party (which information was provided to Zenware® subject to an applicable confidentiality obligation to such third party). With respect to Customer, “Confidential Information” means the Customer Data (except for anonymous Customer Data identified in Section 12, and all information which Customer protects against unrestricted disclosure to others and which (i) if in tangible form, Customer clearly identifies as confidential or proprietary at the time of disclosure; and (ii) if in intangible form (including disclosure made orally or visually). Customer identifies as confidential or proprietary at the time of disclosure, summarizes the Confidential Information in writing, and delivers such summary within thirty (30) calendar days of any such disclosure.
“Customer Data” means all data, documents, materials, and information inputted or uploaded in connection with using the Service or facilitating Customer’s use of the Service.
“Documentation” means the documents made available to the Customer by Zenware® online via the Site that describe the Service and the user instructions for the Service.
“Effective Date” means the date Customer executes or submits the Order Form.
“Erase” or “Erased” means the destruction of Customer Data so that no copy of the Customer Data remains or can be accessed in any way.
“Materials” means the Software, Service, Documentation, and all content and other items on the Site or included as part of the Service, including, without limitation, text, graphics, logos, images, audio clips, information, data, photographs, graphs, videos, typefaces, and software code in any form, code libraries, architecture documents, modules, and databases.
“Order Form” means the signed paper or web-based order form or other mutually-agreed upon form of invoice, order acknowledgement or purchase order completed by Customer when signing up for the Service.
“Regular Business Hours” means 7:00 a.m. to 6:00 p.m., Standard Mountain Time, Monday thru Friday, except holidays.
“Service” means the subscription services provided by Zenware® to the Customer under this Agreement via the Site as modified by Zenware® from time to time, as more particularly set forth in the Documentation.
“Service Month” means the period of time from the Effective Date until the day before the same day of the following calendar month. The last calendar day of the following month is considered to be the end of Service Month in cases where the following month does not have specified day, e.g. there is no 31st day of April as April does have only 30 days, so a Service Month starting on March 31st ends on midnight of April 30th.
“Site” means the web site at https://www.zenware.com or https://roadfs.com and/or such other website or sites that Zenware® communicates to Customer where Customer may access the Service.
“Software” means the software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, and related documentation provided by Zenware® to Customer in connection with the Service.
Subject to the terms and conditions in this Agreement, including payment of all applicable fees, Zenware® grants Customer a non-exclusive license to use the Software and access the Service on a subscription basis during the Term (as defined below). Software provided or otherwise made available to Customer by Zenware® may be used only during the Term and solely as necessary for Customer to enjoy the benefit of the Service, pursuant to this Agreement and shall be subject to all the terms and conditions in this Agreement. You may use and access the Service and Software solely through the Site. Your rights to use the Service are non-exclusive and non-transferable. You may use the Service only for You and/or Your employer’s business purposes, as applicable, not for the benefit of any other third party.
Zenware® will make the Service and Software available for Customer’s use during the Term on Customer’s computer systems that meet the system recommendations for the Service published on the Site, which Customer acknowledges it has reviewed.
Software. Any software that is made available to download by or through this RoadFS, Google Playstore or Apple Store (“Software”) is the copyrighted work of RoadFS, its suppliers and/or its licensors. Use of the Software is governed by the terms of the end user license agreement or other agreement applicable to the Software (each, a “License Agreement”). You may not install any Software that is accompanied by or includes a License Agreement unless you have agreed to the applicable License Agreement terms.
The Software is made available for downloading solely for use by end users in accordance with the License Agreement and/or these Terms. Except to the extent expressly permitted in any applicable License Agreement, or expressly authorized under applicable law overriding any of the following restrictions, you agree that you will not sell, lease, lend, convey, transmit, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or attempt to derive source code from the Software.
Any reproduction, redistribution or other use or exploitation of the Software not in accordance with the License Agreement and/or these Terms is expressly prohibited by law, and may result in civil and criminal penalties. Violators will be prosecuted to the maximum extent permitted under law and equity.
WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY ANY LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE.
Any Software and documentation for such Software that are downloaded from this Site for or on behalf of an agency or instrumentality of the United States Government are “commercial computer software” and “commercial computer software documentation”, and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Software and such documentation are governed by the terms and conditions set forth in these Terms.
3. User Subscriptions.
In the Order Form, Customer will be required to identify the Authorized Users who will be authorized to access the Service and other information required by Zenware® to provide, distribute and deploy the Service and Software to supported devices within Customer’s IT infrastructure. The Service may only be used and accessed by the Authorized Users set forth in the Order Form.
Each Authorized User shall have a separate user name and password for his or her use of the Service and shall keep such user name and password confidential. The user name and password for a given Authorized User may not be used by another Authorized User or otherwise reassigned to any other person without Zenware’s prior written consent, such consent not to be unreasonably withheld.
Customer may, from time to time, add additional Authorized Users in excess of the number set forth in the Order Form. Customer will automatically be invoiced for each additional Authorized User at Zenware’s then-current rate.
Customer may not transfer the Service or any rights conferred to Customer by this Agreement to a third party.
4. Support, Security, and Service Level Availability.
Zenware® will use commercially reasonable security technologies (such as password protection and firewall protection) in providing the Service, and Customer shall comply with the applicable Zenware® security guidelines and procedures made known to Customer through the Service or otherwise.
Zenware® will use commercially reasonable efforts to provide Customer with access to the latest supported version of the Software via the Internet from the hosting facility that Zenware® leases from a third-party hosting vendor on a 24×7 basis, subject to downtime for maintenance, upgrades, and unforeseen interruptions. Zenware® and/or its hosting or telecommunications vendor(s) may perform system maintenance and upgrades from time to time. To the extent possible, system maintenance and upgrades will be carried out during periods of lower user activity. Customer understands and agrees that there may be instances when Zenware® needs to interrupt access to the Software without notice in order to protect the integrity of the Software or Service due to security issues, virus attacks, spam issues or other unforeseen circumstances and such interruptions may occur during high traffic times.
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOFTWARE, INCLUDING TELEPHONE, COMPUTER NETWORKS, AND THE INTERNET, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOFTWARE. ZENWARE® SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO OR USE OF THE SOFTWARE OR THE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON ZENWARE’S ABILITY TO PERFORM THE SERVICE.
5. Customer Obligations.
Customer is responsible for maintaining its user desktops and mobile devices and providing users network access to the Service. Customer is also responsible for ensuring that its users comply with this Agreement with respect to use of the Software and the Service.
Customer shall provide connectivity and security to the Internet for its location(s) for purposes of providing adequate access to Software from the Site. Customer shall provide adequate industry “best practice” standards to ensure reasonable security for integration between applications on the Customer system and Software hosted by Zenware®. Customer shall provide accurate input information in the manner reasonably prescribed by Zenware® in connection with the Software and the Service provided under this Agreement. Customer shall advise Zenware® of any changes to Customer’s operations or other information that would require a change in the support, operation, or configuration of the Service.
Customer shall identify an appropriate individual, with corresponding contact information, including electronic mail address, as the “Primary Contact” with whom Zenware® should communicate matters regarding the Software and Service, such as maintenance notifications, and who has the authority to make service requests and any necessary configuration changes. By default, the individual who signs the Order Form becomes the Primary Contact.
6. Customer Data.
The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Customer shall be responsible for ensuring that any Customer Data is accurate, not corrupt in any way, and does not contain any viruses.
Information Submitted Through RoadFS: Your submission of information through RoadFS to manage your business is governed by RoadFS’ Software Policy and is hereby incorporated into these Terms. You represent and warrant that any information that you provide in connection with your use of the RoadFS is for the sole use of managing your Customer data and information. You agree that if any information that you provide is or becomes false, inaccurate, obsolete or incomplete, RoadFS may terminate your use of the Site.
User Names and Passwords. You will be required to register with RoadFS in order to access the software. With respect to any such registration, RoadFS may refuse to grant you, and you may not use, a user name (or e-mail address) that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that personally identifies you; that violates the intellectual property or other rights of any person; that is offensive; or that RoadFS rejects for any other reason in RoadFS’ sole discretion.
Your user name and password are for your company use only, and not for use by any other person. You are responsible for maintaining the confidentiality of any password you may use to access the RoadFS software, and agree not to transfer your password or user name, or lend or otherwise transfer your use of or access to the RoadFS, to any third party. You are fully responsible for all interaction with RoadFS that occurs in connection with your password or user name. You agree to notify RoadFS immediately of any unauthorized use of your password or user name or any other breach of security related to your account or the RoadFS, and to ensure that you “log off”/exit from your account with the Site (if applicable) at the end of each session. RoadFS is not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
Customer Data: All data collected, stored, and maintained by RoadFS will remain the property of the client and is retained for the sole purpose of facilitating the use of RoadFS. You agree to the collection of client data including email, phone number, photos, files, locations, assets, inventory, services, fees, and charges as part of the use of RoadFS.
Customer and financial data: Zenware will never publicly disclose any personal and sensitive user data related to financial, customer invoicing, or payment activities or any government identification numbers.
Disclosing data to Controllers: We will only disclose your personal or business information with other third-party data controllers i.e. QuickBooks Online, QuickBooks Desktop with your consent (where necessary) or to provide any product or service you have requested (e.g., third-party integrations).
Deletion of data: At any time the client my request that certain data be deleted from RoadFS which may include photos, services, pricing, fees, or invoices by submitting a request to RoadFS Support via email.
Zenware® shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy. In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Zenware® to use reasonable commercial efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Zenware® in accordance with the Back-Up Policy. UNDER NO CIRCUMSTANCES WILL ZENWARE® BE HELD LIABLE FOR ANY LOSS OF CUSTOMER DATA. The Service is not intended to replace the need for Customer to maintain regular data back-ups or redundant data archives.
Unless it receives Customer’s prior written consent, Zenware®: (i) will not access or use Customer Data other than as necessary to facilitate the Software as a Service of RoadFS; (ii) will not give any third party access to Customer Data; and (iii) Zenware will not sell customer data to any third party. Notwithstanding the foregoing, Zenware® may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Zenware® will give Customer prompt notice of any such legal or governmental demand.
In Zenware’s performance of the Service or in connection with Customer’s use of the Software, it may be necessary for Zenware® to obtain, receive, or collect data or information related to Customer’s use of the Service. In such cases, Customer grants Zenware® a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Customer Data solely for those purposes. In addition, Customer grants Zenware® a license to aggregate the Customer Data for use in an anonymous manner in support of Zenware’s marketing and sales activities. Customer also grants Zenware® the right to copy and maintain the Customer Data on Zenware’s servers or hosting facilities leased by Zenware® during the term of this Agreement.
Retaining Customer data: Zenware® will retain all Customer Data within RoadFS this includes customer’s client information, user names, passwords, photos, and other data stored in RoadFS. Upon notification of terminating service Zenware® will Erase all copies of Customer Data upon the earlier of the following to occur: (i) promptly after Customer’s written request or (ii) thirty (30) days after termination of this Agreement.
7. Term and Termination.
This Agreement will be effective as of the Effective Date and, unless sooner terminated as herein provided, will continue for a period of 12 months billed Monthly unless some other period of time has been set forth in the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive renewal terms (each renewal term being the same length as the Initial Term) at Zenware’s then-current fees, unless Customer terminates its account as provided in this Section prior to the end of the Initial Term or applicable Renewal Term (each a “Renewal Term”). The Initial Term and Renewal Term may be collectively referred to herein as the “Term”.
Either party may terminate this Agreement without cause upon at least thirty (30) days prior written notice. If Customer terminates this Agreement, it will not be entitled to a refund of any prepaid amounts for the Service.
Zenware® may terminate this Agreement immediately, if (1) Customer fails to make all payments when due; (2) Customer declares bankruptcy or is adjudicated bankrupt; or (3) a receiver or trustee is appointed for Customer or substantially all of Customer’s assets. Additionally, Zenware® may also immediately terminate this Agreement or suspend Customers use of or access to the Service in the event Zenware® determines in its sole discretion that Customer has breached this Agreement.
Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations, and any obligations that expressly or by implication are intended to survive termination.
8. Charges and Payment.
The fees charged for the Service purchased under this Agreement shall be the amounts set forth on the applicable Order Form. The Service is billed in advance on a monthly basis and is non-refundable, provided fees for any partial month of the Service shall be pro-rated on a thirty (30) day basis. On the Effective Date, the Customer shall provide Zenware® with valid, up-to-date credit card details and hereby authorizes Zenware® to bill such credit card on the fifth (5th) day of each month during the Term.
If payments are not received when due, Zenware® reserves the right to (i) suspend Customer’s access to the Service without liability, until payment is made in full and/or (ii) terminate this Agreement. Zenware® also reserves the right to charge Customer interest at the rate of 1.5% per month against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late penalties will be recalculated every 30 days thereafter based on Customer’s current outstanding balance.
Customer shall be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to state and local privilege, excise, sales, and use taxes and any taxes or amounts in lieu thereof paid or payable by Zenware® .
9. Proprietary Rights.
All right, title, and interest in the Materials, including without limitation, intellectual property (including all copyrights, patents, trademarks, trade secrets, and trade dress) embodied in the Materials, including the methods by which the Service are performed and the processes that make up the Service, shall belong solely and exclusively to Zenware® or its licensors, and You shall have no rights whatsoever in any of the above, except as expressly granted in this Agreement. The Materials are protected by copyright laws as well as other intellectual property laws and treaties.
Customer may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Materials, or any portions thereof, to any third party, and any attempt to do so is null and void. Customer may not (i) copy, modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Materials (including any Software code in any form), in whole or in part; or (ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or make any attempt to ascertain, derive or obtain the source code for the Software.
The Software and Service shall not be used for any commercial purpose beyond the purpose identified in the Documentation. You hereby agree, represent and warrant to Zenware® that You will not access or use the Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You will not use the Software or the Service to take any actions that (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; or (iii) are defamatory, trade libelous, threatening, harassing, or obscene.
10. Suspension or Modification of Software or Service.
Zenware® may suspend, terminate, withdraw, or discontinue the Service upon receipt of a subpoena or law-enforcement request, or when Zenware® believes, in its sole discretion, that You have breached any term of this Agreement or are involved in any fraudulent, misleading, or illegal activities.
For information about Zenware’s privacy practices, read Zenware’s privacy policies at http://www.Zenware.com/Privacy. These policies explain how Zenware® treats Customer’s personal information and protects Customer’s privacy.
Each party represents and warrants that it is authorized to conduct business (or is an individual eighteen (18) years or older) and that it has full right and authority to enter into this Agreement.
ZENWARE® HAS THE RIGHT TO GRANT THE LICENSES TO THE SOFTWARE LICENSED UNDER THIS AGREEMENT AND ACCESS TO THE SERVICE, AND REPRESENTS AND WARRANTS THAT THE SOFTWARE AND THE SERVICE WILL SUBSTANTIALLY CONFORM TO THE DOCUMENTATION PROVIDED BY ZENWARE®. EXCEPT AS EXPRESSLY STATED IN THE PRECEDING SENTENCES, ZENWARE®, (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “ZENWARE® PARTIES”) MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE SOFTWARE OR SERVICE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT; (2) RELATING TO THE PERFORMANCE OF SOFTWARE OR THE SERVICE; OR (3) REGARDING THE RESULTS TO BE OBTAINED FROM THE SOFTWARE, SERVICE, OR THE RESULTS OF ANY RECOMMENDATION BY ZENWARE®.
WITH RESPECT TO YOUR USE OF THE SOFTWARE AND THE SERVICE (1) NEITHER ZENWARE NOR ANY OF THE ZENWARE® PARTIES MAKES ANY EXPRESS OR IMPLIED WARRANTY THAT SOFTWARE OR THE SERVICE PROVIDED TO YOU IN CONNECTION WITH THIS AGREEMENT IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; OR THAT ANY ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED; (2) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF ZENWARE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (3) ZENWARE® AND THE ZENWARE® PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY REPORTS, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY YOU RELATED TO YOUR USE OF THE SOFTWARE OR THE SERVICE.
13. Limitation of Liability.
NEITHER ZENWARE® NOR THE ZENWARE® PARTIES WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL, COST OF COVER, BUSINESS INTERRUPTION OR DOWNTIME, OR SERVICE, SOFTWARE OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE.
EXCEPT FOR THE INDEMNIFICATION FOR THIRD-PARTY CLAIMS PROVIDED BELOW, ZENWARE’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING ANY SOFTWARE, OR SERVICE PROVIDED HEREUNDER) IN ANY 12–MONTH PERIOD SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER DURING THE PRIOR 12 MONTHS OF THIS AGREEMENT FOR THE SERVICE.
THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATION OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR ZENWARE’S SALE OF SOFTWARE OR SERVICE TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
If applicable law limits the application of this Section, Zenware’s liability will be limited to the maximum extent permissible under applicable law.
Zenware® shall defend and indemnify Customer against any third-party claim arising out of, related to, or alleging (i) infringement or misappropriation of a third party’s patent, copyright, trade secret, or other intellectual property rights by the Software or (ii) any loss of or damages to real or tangible personal property caused by the negligence of Zenware® (“Indemnified Claims”). Notwithstanding the foregoing, Zenware® shall have no obligation under this Section for any claim resulting or arising from (1) modifications of the Software or Service that were not performed by or on behalf of Zenware®; (2) the combination, operation, or use of the Software or Service in connection with hardware or software not provided by Zenware® that (a) is specifically forbidden in the Documentation or (b) that is not designated in the Documentation as available for interface with the Software; (3) the combination, operation, or use of the Software or Service in connection with a third-party product (the combination of which causes the claimed infringement); (4) Zenware’s compliance with Customer’s written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by Customer; or (5) Customer’s violation of this Agreement. This Section states Customer’s exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate Zenware® to provide any greater indemnity to Customer.
Customer shall defend and indemnify Zenware® against any third-party claim or action arising out of or related to or alleging (1) Customer’s breach of this Agreement; (2) Customer’s breach of Zenware’s proprietary rights as stated in this Agreement; (3) use of the Software or Service; or (4) that any Customer Data violates or infringes any rights of third-parties.
Each party shall defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
The indemnified party will (a) promptly notify the indemnifying party in writing of any such claim, (b) grant the indemnifying party sole control of the defense and resolution of such claim, and (c) cooperate with the indemnifying party, at the indemnifying party’s expense, in defending and resolving such claim.
Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing party and shall contain all confidential or proprietary notices or legends that appear on the original. With respect to the Confidential Information of the other, each party shall take all reasonable steps (defined below) to keep all Confidential Information strictly confidential, provided each party may disclose Confidential Information to its bona fide individuals whose access is necessary to enable it to exercise its rights hereunder. As used herein “reasonable steps” means those steps the receiving party takes to protect its own similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of either party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder.
The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this Agreement by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.
Customer shall not disclose the terms and conditions of this Agreement or the pricing contained herein to any third party. Neither party shall use the name of the other party in publicity, advertising, or similar activity, without the prior written consent of the other, except that Customer agrees that Zenware® may use Customer’s name in customer listings or as part of Zenware’s marketing efforts (including without limitation reference calls and stories, press testimonials, site visits, and the like).
16. Independent Contractors; Assignment.
The parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between Zenware® and Customer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. Zenware® has the right to assign, subcontract, or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise. From time to time, Zenware® may change the location where the Service is performed and/or the party performing the Service; provided however, Zenware® shall remain responsible to Customer for the delivery of the Service. Otherwise, neither party may assign this Agreement without the permission of the other.
17. Force Majeure.
Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, terrorism, or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement by giving written notice to the delayed party.
18. Entire Agreement; Severability.
This Agreement is the entire agreement between Customer and Zenware® with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between Customer and Zenware® for the Service. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
19. Governing Law; Venue.
This Agreement and any claim, dispute, or controversy (whether in contract, tort, or otherwise, including statutory, consumer protection, common, law, intentional tort and equitable claims between Customer and Zenware®, including their affiliates, contractors, and agents, and each of their respective employees, directors, and officers arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), shall be governed by the laws of the State of Idaho, without regard to conflicts of law. The parties agree that any such action shall be brought exclusively in the state or federal courts located in Ada County, Idaho. Customer and Zenware® agree to submit to the personal jurisdiction of the state and federal courts located within Ada County, Idaho, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
All notices under this Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, postage prepaid, or sent by facsimile or overnight courier (i.e. Federal Express) to Customer and to Zenware® at the addresses designated from time to time by the parties in writing. Notices mailed as aforesaid shall be deemed given three (3) days after the date of such mailing or upon the date of receipt if delivery is made in person or via overnight courier. Notices given by facsimile shall be deemed given on the date of transmission if receipt thereof is confirmed by telephone. Notwithstanding the foregoing, actual notice however and from whomever received shall always be effective.