These General Terms and Conditions are between AppZen, Inc. and the entity that has executed the Order Form (defined below) that incorporates these General Terms and Conditions by reference. Subscriber (defined below) agrees that by placing an order through an Order Form that incorporates these General Terms and Conditions, Subscriber agrees to follow and be bound by the terms and conditions of the Order Form and these General Terms and Conditions. If Subscriber does not agree to follow and be bound by the terms and conditions of the Order Form and these General Terms and Conditions, Subscriber shall not place an order or use the Services (defined below).
Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the Services.
1.2 “Agreement” means these General Terms and Conditions and any Order Form referencing these General Terms and Conditions, and any other schedules, supplements, statements of work, exhibits, or appendices thereto, whether attached or incorporated by reference.
1.3 “Affiliate” means any individual, corporation, partnership, limited liability company, or other entity that directly or indirectly, controls, or is controlled by, or is under common control with, a party. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of any such entity or organization, whether through the ownership of securities, by contract, or otherwise.
1.4 “AppZen” means the entity identified by the Order Form as providing the Services to Subscriber.
1.5 “Application” means the software described in an Order Form, hosted on AppZen’s servers or those of its hosting services providers, and accessed and used by Subscriber via the worldwide web, including all changes, corrections, bug fixes, enhancements, updates and other modifications to such software, whether made by or on behalf of AppZen, Subscriber, or any third party.
1.6 “Authorized User” means any individual who is an employee of Subscriber or such other person or entity as may be authorized by an Order Form to access the Services pursuant to Subscriber’s rights under this Agreement.
1.7 “Documentation” means the technical materials and documentation provided by AppZen to Subscriber in hard copy or electronic form describing the use and operation of the Application.
1.8 “Effective Date” means the effective date set forth in the Order Form.
1.9 “Error” means a reproducible failure of the Software to substantially conform to the Documentation.
1.10 “Error Corrections” means bug fixes or workarounds intended to correct Errors in the Software.
1.11 “Intellectual Property Rights” means any and all intellectual property, industrial property, and other proprietary rights throughout the world, including all rights in, to, or arising out of patents, patent applications, inventions (whether patentable or not), invention disclosures, trade secrets, know-how, proprietary information, works of authorship, copyrights, mask works, moral rights, trademarks, service marks, software, data, technology, layout designs, and design rights, and all registrations, applications, renewals, extensions, or reissues of any of the foregoing.
1.12 “Order Form” means all written order forms or other ordering documentation signed by both parties referencing these General Terms and Conditions, identifying the applicable Services to be made available by AppZen, and containing the pricing, subscription term, and other specific terms and conditions applicable to the Services.
1.13 “Services” means the Application, Documentation, and any related services agreed by the parties in an Order Form.
1.14 “Subscriber” means the entity that has consented to this Agreement by execution of an Order Form that references these General Terms and Conditions or by any other legally binding method of acceptance of this Agreement.
1.15 “Subscriber Data” means any (a) information provided or transmitted by Subscriber to the Application, and (b) the configuration data, including but not limited to domain names, IP addresses, policies, and active directory groups, provided or transmitted by Subscriber to the Application.
2.1 Access. Subject to Subscriber’s payment of the fees set forth in the Order Form, AppZen will provide the Services via an online user interface specified in such Order Form. On or as soon as reasonably practicable after the Effective Date, AppZen shall provide to Subscriber the necessary Access Protocols to allow Subscriber and its Authorized Users to access the Application. Subscriber may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement.
2.2 Responsibilities of AppZen. AppZen shall, at its own expense, provide for the hosting of the Application on servers operated and maintained by or at the direction of AppZen, provided that nothing herein shall be construed to require AppZen to provide for, or bear any responsibility with respect to any telecommunications, computer hardware, software, and Internet connectivity required by Subscriber or any Authorized User to provide access from the Internet to the Application. AppZen shall configure the Subscriber Data for operation with the Application and manage such Subscriber Data. Subject to Subscriber’s payment of the fees set forth in the Order Form, AppZen shall provide new releases and updates to the Application that it generally provides to its other customers, provided that AppZen shall not be obligated to provide to Subscriber any new release or update to the Application, or any module thereof, for which AppZen generally charges a separate fee, unless otherwise agreed to by the parties in the Order Form. Subject to the terms of this Agreement, AppZen shall provide Subscriber with the technical support services set forth in the Order Form. Subject to the terms of this Agreement, if applicable, AppZen shall provide Subscriber the Services in accordance with the service level terms set forth in the Order Form.
2.3 Responsibilities of Subscriber. Subscriber shall cooperate with AppZen in setting up and configuring the Application, including by providing AppZen with applicable configuration data to be used by the Application. Subscriber shall be responsible for obtaining and maintaining, at Subscriber’s expense, all of the necessary telecommunications, computer hardware, software, and Internet connectivity required by Subscriber or any Authorized User to access the Application from the Internet. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify AppZen promptly of any such unauthorized use known to Subscriber.
3.1 License Grant to Subscriber. Subject to the terms and conditions of this Agreement, AppZen grants to Subscriber and its Affiliates a limited, non-exclusive, non-transferable (except as set forth in Section 11.6), worldwide license during the term of this Agreement, without the right to sublicense, solely for Subscriber’s internal business purposes and in accordance with the limitations set forth in the Order Form, (a) to access, use, perform, and digitally display the Application as required for use of the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Subscriber’s use of the Application.
3.2 Limitations. Subscriber agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Application or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter, translate, or create derivative works of the Application or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Application or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Application; (e) use or copy the Application or Documentation, except as expressly allowed herein. Subscriber acknowledges and agrees that the Services will not be used, and are not licensed for use, in connection with any of Subscriber’s time-critical or mission-critical functions. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Services, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Application. AppZen shall have the right to review and monitor all use of the Services to ensure compliance with the terms and conditions of this Agreement.
3.3 Ownership. The Services (including the Application and Documentation), and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of AppZen and its suppliers. All rights in and to the Services (including the Application and Documentation) not expressly granted to Subscriber in this Agreement are reserved by AppZen and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Subscriber regarding the Services (including the Application and Documentation), or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Application.
3.4 Open Source Software. Certain items of software may be provided to Subscriber with the Application and are subject to “open source” or “free software” licenses (“Open Source Software”). Such Open Source Software may be owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 3.1 or Section 9.1. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Subscriber’s rights under, or grants Subscriber rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, AppZen makes such Open Source Software, and AppZen’s modifications to that Open Source Software, available by written request at the notice address specified in the Order Form.
4.1 Fees. In consideration for the Services, Subscriber will pay to AppZen the fees set forth in the Order Form. All fees for Services shall be invoiced by AppZen in USD and are due and payable as set forth in the Order Form. AppZen shall be entitled to withhold performance and discontinue the Services until all amounts due are paid in full. Except as set forth in an Order Form, all undisputed amounts payable to AppZen under this Agreement shall be due forty-five (45) days after the applicable invoice date. Any undisputed amounts not paid when due shall bear interest at the rate of one percent (1%) per month, or the maximum rate allowed under applicable law, whichever is less.
4.2 Taxes. The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on AppZen’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the delivery of the Services, or the license of the Application to Subscriber. Subscriber will make all payments of fees to AppZen free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to AppZen will be Subscriber’s sole responsibility, and Subscriber will provide AppZen with official receipts issued by the appropriate taxing authority, or such other evidence as the AppZen may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify, defend, and hold AppZen harmless in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
4.3 Expenses. If pre-approved by Subscriber in an Order Form, Subscriber shall reimburse AppZen for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Services under such Order Form. All costs and expenses incurred by Subscriber in connection with this Agreement are the sole responsibility of Subscriber.
4.4 Audit. AppZen may audit Subscriber’s records relating to its use of the Services to verify Subscriber’s compliance with the terms of this Agreement. AppZen will give Subscriber at least ten (10) days advance notice of any such audit and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Subscriber’s normal operations. If any such audit should disclose any underpayment of fees, Subscriber shall promptly pay AppZen such underpaid amount, together with interest thereon at the rate specified in Section 4.1. If the amount of such underpayment exceeds five percent (5%) of fees actually paid during the audited period, Subscriber shall also pay AppZen for AppZen’s reasonable expenses associated with such audit.
5.1 License; Ownership. Subscriber grants AppZen a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Subscriber Data as necessary for purposes of providing the Services and enabling the operation of the Application, and (b) to use the Subscriber trademarks, service marks, and logos as required to provide the Services. The Subscriber Data hosted by AppZen as part of the Services, and all worldwide Intellectual Property Rights therein, is, as between AppZen and Subscriber, the exclusive property of Subscriber. All rights in and to the Subscriber Data not expressly granted to AppZen in this Agreement are reserved by Subscriber. Notwithstanding anything to the contrary herein, AppZen shall have the right to collect and analyze aggregated data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (“Aggregated Data”), and AppZen shall be free (during and after the term of this Agreement) to (i) use Aggregated Data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other AppZen offerings, and (ii) disclose Aggregated Data sole in aggregate or other de-identified form in connection with its business.
5.2 Subscriber Warranty. Subscriber represents and warrants that any Subscriber Data hosted by AppZen as part of the Services shall not (a) infringe or misappropriate any Intellectual Property Rights of any person; (b) be deceptive, defamatory, obscene, or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage AppZen’s systems or data; or (d) otherwise violate the rights of any person. AppZen is not obligated to back up any Subscriber Data; the Subscriber is solely responsible for creating backup copies of any Subscriber Data at Subscriber’s sole cost and expense. Subscriber agrees that any use of the Services contrary to or in violation of the representations and warranties of Subscriber in this section constitutes unauthorized and improper use of the Services.
5.3 Subscriber Responsibilities for Data and Security. Subscriber and its Authorized Users shall have access to the Subscriber Data and shall be responsible for all changes to and/or deletions of Subscriber Data and the security of all passwords and other Access Protocols required in order the access the Application. Subscriber shall have the ability to export Subscriber Data out of the Application and is encouraged to make its own back-ups of the Subscriber Data. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Subscriber Data.
5.4 AppZen Responsibilities for Data and Security. AppZen shall (a) maintain and enforce an information security program including safety, physical and technical security policies and procedures with respect to its processing of Subscriber Data that meets or exceeds industry practices and standards applicable to the protection of data similar to Subscriber Data, (b) provide technical and organizational safeguards against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, or processing of Subscriber Data consistent with industry practice and standards, and designed to ensure a level of security appropriate to the risks presented by the processing of data similar to Subscriber Data, (c) periodically test its systems for potential areas where security could be breached and monitor for suspected breaches, (d) promptly report to Subscriber any breach of security or unauthorized access to Subscriber Data that AppZen detects or becomes aware of, (e) use diligent efforts to remedy any breach of security or unauthorized access to Subscriber Data in a timely manner, and (f) refrain from notifying, for or on behalf of Subscriber (or any Authorized User), any regulatory authority, consumer or other person of any breach of security or unauthorized access to Subscriber Data unless Subscriber explicitly requests in writing that AppZen do so.
6.1 Limited Warranty. AppZen warrants to Subscriber that the Application will operate free from Errors during the term of the Agreement. The foregoing warranty shall not apply to performance issues of the Application (a) caused by factors outside of AppZen’s reasonable control; (b) that result from any actions or inactions of Subscriber or any third parties; or (c) that result from Subscriber’s data structures, operating environment, or equipment. Provided that Subscriber notifies AppZen in writing of any breach of the foregoing warranty during the term of this Agreement, AppZen shall, as Subscriber’s sole and exclusive remedy for any Errors with the operation of the Application, (i) provide the technical support services set forth in the Order Form to correct such Error(s), or (ii) if AppZen is unable to correct such Error(s) within a commercially reasonable amount of time, terminate this Agreement and refund to Subscriber the pro-rated portion of any prepaid fees attributable to any unused Services and this Agreement shall thereafter terminate.
6.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 IS MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6.1 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING THE APPLICATION AND DOCUMENTATION) ARE PROVIDED “AS IS,” AND APPZEN MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE APPLICATION, Documentation, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY APPZEN. APPZEN DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE APPLICATION SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
7.1 Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, MISUSE, OR INABILITY TO USE THE APPLICATION, Documentation, SERVICES OR OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
7.2 Amount of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO APPZEN DURING THE twelve (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
7.3 Exclusions. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR ITS INDEMNIFICATION LIABILITY ARISING UNDER SECTION 9, FOR ITS BREACH OF SECTION 8, for its breach of section 3.2, OR FOR GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, DEATH, OR PERSONAL INJURY.
7.4 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 7 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). For the avoidance of doubt, the Application, Documentation, and all enhancements and improvements thereto, will be considered Confidential Information of AppZen, and the Subscriber Data will be considered Confidential Information of Subscriber.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party written notice certifying compliance with this sentence.
8.3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
9.1 By AppZen. AppZen will defend at its expense any suit brought against Subscriber, and will pay any settlement AppZen makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Application infringes or misappropriates any Intellectual Property Rights of any third party. If any portion of the Application becomes, or in AppZen’s opinion is likely to become, the subject of a claim of infringement, AppZen may, at AppZen’s option: (a) procure for Subscriber the right to continue using the Application; (b) replace the Application with non-infringing software which does not materially impair the functionality of the Application; (c) modify the Application so that it becomes non-infringing; or (d) terminate this Agreement and refund to Subscriber the pro-rated portion of any prepaid fees attributable to any unused Services, and upon such termination, Subscriber will immediately cease all use of the Services. Notwithstanding the foregoing, AppZen shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied or recommended by AppZen; (y) any modification of the Application by any person other than AppZen or its authorized agents; or (z) modification of the Application based upon specifications furnished by Subscriber. This Section 9.1 states the sole and exclusive remedy of Subscriber and the entire liability of AppZen, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for third party claims and actions described in this Section 9.1.
9.2 By Subscriber. Subscriber will defend at its expense any suit brought against AppZen, and will pay any settlement Subscriber makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party arising out of or relating to Subscriber’s breach or alleged breach of Section 5.2 or Section 5.3. This Section 9.2 states the sole and exclusive remedy of AppZen and the entire liability of Subscriber, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for third party claims and actions described in this Section 9.2.
9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10.1 Term. This Agreement commences on the Effective Date and remains in effect for the term specified in the Order Form unless earlier terminated as set forth below. This Agreement shall be automatically renewed for consecutive one (1) year terms unless either party provides written notice to the other of its intention not to renew at least sixty (60) days prior to the expiration of the then-current term.
The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless AppZen has given Customer written notice of pricing increase at least 30 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. Any such pricing increase will not exceed 8% of the pricing for the applicable service in the immediately prior subscription.
10.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
10.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate (except that all payment obligations accrued prior to termination or expiration shall survive); and (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in Section 8.2. The following sections will survive expiration or termination of this Agreement for any reason: 1; 3.2; 3.3; 4; 5.1; 6.2; 7; 8; 10.3; and 11.
11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and federal courts located in San Jose, California for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.2 Export. Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from AppZen, or any products utilizing such data, in violation of the United States export laws or regulations.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
11.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5 Remedies. Subscriber acknowledges that the Services contain valuable trade secrets and proprietary information of AppZen, that any actual or threatened breach of Section 3 or Section 8 or any other breach by Subscriber of its obligations with respect to Intellectual Property Rights of AppZen will constitute immediate, irreparable harm to AppZen for which monetary damages would be an inadequate remedy. In such case, AppZen will be entitled to seek immediate injunctive relief without the requirement of posting bond.
11.6 No Assignment. Subscriber shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of AppZen, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Subscriber may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of AppZen. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8 Independent Contractors. Subscriber’s relationship to AppZen is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
11.9 Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
11.10 Counterparts. The Order Form may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
11.11 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and the AppZen.