AppZen Software License Agreement
Thank you for selecting the Software offered by AppZen Inc., a Delaware corporation with offices located at 440 N Wolfe Rd, Sunnyvale, CA 94085 , and/or its subsidiaries and affiliates (referred to as “AppZen”). Review these license terms (“Agreement”) thoroughly. This Agreement is a legal agreement between you (the “Licensee”) and AppZen. By clicking “I Agree,” indicating acceptance electronically, or by installing, accessing or using the Software, you agree to these terms. If you do not agree to this Agreement, then you may not use the Software.
1. Definitions. For purposes of this Agreement, the following terms will have the meanings ascribed to them below.
1.1 “Application” means the software as described in the Order Form, and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of AppZen, Licensee, or any third party.
1.2 “Confidential Information” means any information disclosed by one Party to the other, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the receiving Party within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Application and the AppZen System shall be deemed Confidential Information of AppZen, and the Licensee Data shall be deemed Confidential Information of Licensee.
1.3 “Documentation” means any documentation provided by AppZen for use with the Application under this Agreement.
1.4 “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
1.5 “Licensed Materials” means the Application and the Documentation.
1.6 “Licensee Data” means (a) information provided or transmitted by Licensee to the AppZen System, and (b) the configuration data, including but not limited to domain names, IP addresses, policies, and active directory groups, provided or transmitted by Licensee to the AppZen System, and any modifications, derivations, enhancements, compilations or changes to or from any of the foregoing by or on behalf of Licensee in relation to Licensee’s use of the Application.
1.7 “AppZen System” means the Application operated on AppZen’s hosting servers or those of its hosting service provider intended to enable the Licensee to interact with the same via the worldwide web.
2. Responsibilities of AppZen.
2.1 AppZen will host and maintain the Application on servers operated and maintained by or at the direction of AppZen; configure the Licensee Data for operation with the Application; and manage the Licensee Data.
2.2 AppZen may in its sole discretion modify, enhance or otherwise change the Application upon prior written notice to the Licensee. AppZen may delegate the performance of certain portions of the AppZen System to third parties provided AppZen remains responsible to Licensee for the delivery of the AppZen System.
2.3 AppZen shall not be obligated to provide to the Licensee any new release of any Application or module thereof, or other software or services for which AppZen generally charges a separate fee, unless otherwise agreed to by the Parties in Exhibit A or Exhibit B. On continued payment of applicable fees by Licensee, AppZen will provide new releases and updates.
3. Responsibilities of Licensee.
3.1 The Licensee will cooperate in setting up the Application as reasonably requested by AppZen, including without limitation by providing AppZen with a list of internal and/or external domains to be federated by the Application.
3.2 The Licensee will be responsible for obtaining and maintaining at the Licensee’s expense all the necessary computer hardware, software, modems, connections to the Internet and other items required to access the AppZen System.
3.3 Right to Monitor. AppZen will have the right to review and monitor all use of the AppZen System to ensure compliance with all of the terms of this Agreement.
3.4 Reverse Engineering Prohibited. The Licensee agrees that it will not (i) reverse engineer, reverse compile, decompile, disassemble, reverse assemble, bypass, defeat, disable or otherwise engineer the Application (including any element and/or technology), (ii) integrate and/or use the Application and/or related Intellectual Property in a manner that disables or adversely affects the functionality of the Application or ownership rights therein, and/or (iii) intentionally introduce any form of virus into the AppZen System. Except as expressly provided for herein, the Company Intellectual Property may not be reproduced, stored in a retrieval system, transmitted in any form, by any means, including electronic, mechanical, photocopying, recording, translated into any computer language, or otherwise, without the prior written permission of AppZen. The Licensee may not modify in any way, or reproduce or publicly display, perform or distribute, or otherwise use the AppZen Intellectual Property, for any public or commercial purpose other than as expressly provided herein. In addition, the AppZen Intellectual Property may not be translated (except by AppZen), modified, altered, adapted or used to create derivative works by the Licensee. The Licensee shall duplicate proprietary notices incorporated in or fixed to the AppZen Application and the AppZen Intellectual Property, the AppZen web site and/or AppZen property, on all copies, or extracts thereof, and shall not alter, remove or obliterate such notices.
4. License Grant.
4.1 Grant. Subject to the terms and conditions of this Agreement, AppZen grants to Licensee a limited, non-exclusive, non-transferable, non-assignable worldwide license, without the right to sublicense, to distribute the Application to their employees and customers. –License Restrictions. Licensee shall not, and shall not permit any third party to: (i) use the Licensed Materials except to the extent permitted in Section 5 or (ii) modify or create any derivative work of any part of the Licensed Materials.
4.3 Copies of Documentation. Licensee may make a reasonable number of copies of the Documentation solely to support Licensee’s use of the Application as authorized under this Agreement, provided that such copies shall include AppZen’s copyright and any other proprietary notices that appear on the original copies of the Licensed Materials. Any copies of the Documentation made by Licensee are the exclusive property of AppZen. Licensee shall have no right to sub-license or resell the Documentation.
4.2 Reservation of Rights. AppZen reserves all rights to the AppZen System not otherwise expressly granted in this Section 4.
5. License to AppZen. Subject to the terms and conditions of this Agreement, the Licensee hereby grants AppZen a limited, worldwide, non-exclusive, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the Licensee Data solely in order to enable the working of the Application. AppZen shall have no right to sub-license or resell the Licensee Data or any component thereof.
6. Payment; Taxes.
6.1 License Fees. License Fees are set forth in the Ordering Document.
6.2 Taxes. Licensee shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on AppZen’s net income. Licensee agrees to indemnify, defend, and hold AppZen, its officers, directors, Licensees, employees, successors and assigns harmless from all claims and liability arising from Licensee’s failure to report or pay any such taxes, duties or assessments.
6.3 Payment Terms. AppZen will generate an invoice on the Effective Date which will indicate which license was selected by the Licensee and the fees therewith. All undisputed amounts payable to AppZen under this Agreement will be due 30 days from the date of the invoice unless the Parties otherwise agree to a different invoicing process. Overdue payments will be subject to interest at the rate of 1-1/2% per month, or the maximum allowable under applicable law, whichever is less.
7.1 Licensee. As between Licensee and AppZen, the Licensee shall retain all right, title and interest in and to the Licensee Data and all Intellectual Property Rights therein. Nothing in this Agreement will confer on AppZen any right of ownership or interest in the Licensee Data or the Intellectual Property rights therein.
7.2 AppZen. As between Licensee and AppZen, AppZen shall retain all rights, title and interest in and to the Application, the AppZen System, any changes, corrections, bug fixes, enhancements, updates and other modifications thereto, and all Intellectual Property Rights therein, and as between the Parties all such rights shall vest in and be assigned to AppZen. Nothing in this Agreement will confer on Licensee any right of ownership or interest in the Application, the AppZen System, or the Intellectual Property Rights therein.
8. Limited Application Warranty.
8.1 Scope of Limited Warranty. AppZen warrants to Licensee that during the Term, the Application will perform substantially in accordance with the Documentation. The foregoing warranty shall not apply to performance issues of the AppZen System (i) caused by factors outside of AppZen’s reasonable control; (ii) that result from any actions or inactions of Licensee or any third parties; or (iii) that result from Licensee’s data structure, operating environment or equipment.
8.2 Sole Remedy. Should the Application not perform or function as expressly warranted herein, AppZen shall use commercially reasonable efforts to correct the nonconformities that make the application unusable giving rise to such breach. If AppZen is unable to correct the nonconformities to Licensee’s satisfaction, then AppZen shall refund to Licensee the License Fees paid in the previous two months
8.3 Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION 8, APPZEN MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED MATERIALS, THE APPZEN SYSTEM, OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. APPZEN SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED ON AN AS IS, AS AVAILABLE BASIS.
9. Term; Termination.
9.1 Term. Unless earlier terminated as provided in this Section 9, this Agreement will have an initial term of one (1) year (the “Initial Term”), which shall commence as of the Effective Date, and shall thereafter automatically renew for additional periods of one (1) year (the “Renewal Term”) unless either Party provides written notice of its intention not to renew to the other Party at least thirty (30) days prior to expiration of the current term (any such Renewal Term, together with the Initial Term, the “Term). The Parties may modify the Term as set forth in Exhibits B. Notwithstanding anything to the contrary herein, the Parties may agree to maintenance renewals.
9.2.1 By Either Party. This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:
(a) if the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; or
(b) if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing.
9.2.2 Effect of Termination. Upon termination of this Agreement, each Party shall promptly return, or at the other Party’s request destroy, all Confidential Information of the other Party (including without limitation the Licensee Data and the Documentation). Sections 1, 4.2, 7, 8, 10, and 11-14 shall survive termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination.
10.1 Nondisclosure. Each Party (each a “Receiving Party”) agrees that it shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes; shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, Licensees, or advisors who have a need to know; and shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
10.2 Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
10.3 Remedies. The Receiving Party agrees that a breach of this Section 10may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
11. Limitation on Damages.
11.1 EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR BREACH OF SECTION 3.4 AND INDEMNIFICATION FOR THIRD-PARTY DAMAGES ARISING UNDER SECTION 12 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE.
11.2 MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR BREACH OF SECTION 3.4 AND INDEMNIFICATION LIABILITY ARISING UNDER SECTION 12 OF THIS AGREEMENT, THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF PAYMENTS IN PREVIOUS SIX MONTHS. LICENSEE ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12.1 Indemnification. Each Party shall indemnify, defend and hold the other Party and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses arising from a claim that the AppZen System (as to AppZen), or the Licensee Data (as to Licensee) violates any applicable statute, regulation, or law, or infringes any intellectual property right or other legal right of any third party (a “Claim”). This indemnity does not apply to, and AppZen will have no obligation to the Licensee for, any infringement or misappropriation claim that arises from (i) modifications to the AppZen System by anyone other than AppZen, (ii) modifications to the AppZen System based upon specifications furnished by the Licensee, (iii) Licensee’s use of the AppZen System other than as specified in this Agreement or in the applicable documentation, (iv) use of the AppZen System in conjunction with third-party software, hardware or data other than that approved by AppZen, or (v) any combination of the foregoing. Licensee shall indemnify, defend and hold AppZen and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and shall give AppZen all reasonable information and assistance regarding such claim.
12.2 The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defense (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent, not to be unreasonably withheld or delayed.
12.3 In the event any portion of the AppZen System is held or believed by AppZen, or any portion of the Licensee Data is held or believed by the Licensee, to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the AppZen System is used or accessed, then in addition to any other rights in this Section 12, AppZen (where the Infringing Materials are the AppZen System) or Licensee (where the Infringing Materials are the Licensee Data) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate this Agreement.
12.4 THIS SECTION 12 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.
13.1 Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, AppZen may, without the consent of Licensee, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.
13.2 Entire Agreement. This Agreement, and any exhibits and amendments thereto, constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties.
13.3 Import and Export Requirements. Licensee acknowledges and agrees that the Licensed Materials are subject to export control laws and regulations. Licensee may not download or otherwise export or re-export the Licensed Materials or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. None of the Licensed Materials or any underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into, or to a national or resident of, any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Licensee hereby agrees to the foregoing and warrants that Licensee is not located in, or under the control of, or a national or resident of any such country or on any such list.
13.4 Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.
13.5 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the state of California without giving effect to its conflicts of law rules. Each Party will bear its own costs with respect to any disputes arising under this Agreement.
13.6 Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section.
13.7 Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
13.8 Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
13.9 Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
13.10 Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
13.11 Construction; Advice of Counsel. Both Parties acknowledge and agree that the Agreement has been jointly prepared and its provisions will not be construed more strictly against either Party as a result of its participation in such preparation. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
13.12 Facsimile and Counterparts. This Agreement may be signed by facsimile and may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
13.13 Dispute Resolution. With respect to any controversy or claim arising out of, or in any way related to this Agreement, the Parties agree in good faith to attempt to resolve such dispute before entering into any formal legal proceeding by providing written notice and entering into good faith discussions and negotiation with its respective management. If the issue or dispute has not been resolved within ten (10) days of the date of written notice thereof to the other Party of the issue or dispute, (or longer period as may be agreed to between the parties), then the issue shall be resolved by mediation in accordance with applicable American Arbitration Association Mediation Rules. The Parties will agree on a mediator who has experience in the relevant industry. If the matter has not been resolved by mediation within twenty (20) days of the initiation of the mediation, the controversy shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The Parties will each select an arbitrator, and the arbitrators shall select the third arbitrator. The arbitration proceeding shall take place in Santa Clara County, California. The arbitration award shall be binding and valid upon the Parties and the judgment thereon may be entered and enforced as the final judgment in any court of competent jurisdiction.
Date: July 2016