Zorroa Corporation (“Zorroa”) licenses its business intelligence software for image databases (the “Software”) and the related online and electronic documentation for the Software (the “Documentation”), subject to the terms and conditions of this Agreement. BY SELECTING “ACCEPT”, OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT BECOME LEGALLY BINDING ON YOU AS AN INDIVIDUAL OR ON THE ORGANIZATION THAT YOU REPRESENT. AS A RESULT, PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
IF YOU THE INDIVIDUAL (A) DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR (B) ARE NOT AUTHORIZED TO DOWNLOAD OR INSTALL THE SOFTWARE AND AGREE TO BE BOUND BY THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION, YOU ARE REQUIRED TO SELECT “DO NOT ACCEPT”, IN WHICH CASE YOU ARE NOT PERMITTED TO DOWNLOAD, INSTALL OR USE THE SOFTWARE.
A legally binding contract is immediately formed upon your acceptance of this Agreement. The licensee who is bound by this Agreement (“Licensee”) is: (i) the individual accepting this Agreement, if the individual is licensing the Software for his or her personal use or use as a sole proprietor; or (ii) the corporation, institution, partnership, organization or other entity (“Organization”) on whose behalf the individual accepting this Agreement is acting. Licensee represents that the name provided to Zorroa, if any, is its full and correct legal name.
License to use Software. Subject to the terms and conditions of this Agreement, Zorroa hereby grants Licensee a limited, nonexclusive, nontransferable right and license, with no right to grant sublicenses, for Authorized Users to install and Use the Software: (i) solely in object code format; (ii) solely for the Usage Purpose; (iii) solely for the term permitted by Licensee’s applicable License Type (as described in Section 1.2); and (iii) subject to the other specific terms and conditions of Licensee’s applicable License Type (as described in Section 1.2).
License Types. The Software is provided to Licensee subject to specific terms and conditions that further define the scope of Licensee’s Use of the Software based on the type of license granted (“License Type”). The License Types, and the terms and conditions applicable to each License Type, are set out in Appendix A to this Agreement. Licensee must not, and must not attempt to, install any License(s) or Use the Software outside of the scope of the License Type that applies to the License(s) issued to Licensee. Any actual or attempted Use of the Software outside of the scope of the applicable License Type is a breach of this Agreement and an infringement of the rights of Zorroa.
Licensee Responsibilities. Licensee shall: (i) take appropriate action to ensure that non-Authorized Users do not Use the Software; (ii) ensure that all Authorized Users comply with all of the terms and conditions of this Agreement, including the limitations and restrictions set out in Section 1.4; (iii) be solely responsible for any digital assets or other content that is uploaded to the Software by Authorized Users, including compliance with any restrictions imposed by the author of the content and any violations of intellectual property rights; (iv) be solely responsible for the accuracy, integrity, legality and appropriateness of all content created by Authorized Users using the Software; and (v) Use the Software in compliance with all applicable laws, rules and regulations (including those relating to export, homeland security, anti-terrorism, data protection and privacy) and the Documentation. Licensee shall be responsible for any breach of this Agreement by Authorized Users and any installation or Use of the Software by persons other than Authorized Users. Licensee shall immediately notify Zorroa of any unauthorized installation or Use of the Software.
Limitations and Restrictions. Subject to the terms and conditions for the applicable License Type, Licensee agrees that it will not, and will not permit any third party to, directly or indirectly: (i) copy the Software (except that Licensee may download and install the Software and make one copy of the Software solely for backup purposes) or create derivative works based on the Software; (ii) assign, transfer, lease, rent, sublicense, distribute or otherwise make available the Software, any license granted under this Agreement, in whole or in part, to any third-party, including on a timesharing, software-as-a-service or other similar basis; (iii) permit any third party, other than an Authorized User, to install or Use the Software; (iv) share any user IDs or passwords with anyone other than Authorized Users; (v) Use the Software to provide any service bureau services or any services on a similar basis; (vi) Use the Software under a Non-Commercial License for Commercial purposes, or receive any form of compensation for work product created or work performed Using the Software under a Non-Commercial License; (vii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of any portion of the Software; (viii) attempt to tamper with, alter, disable, hinder, by-pass, override, or circumvent any security, reliability, integrity, accounting or other mechanism, restriction or requirement of the Software; (ix) modify or attempt to modify the Software; (x) install or Use the Software in any way that would subject the Software, in whole in or in part, to governmental regulation that would not have otherwise applied but for such installation or Use; (xi) remove, obscure or alter any copyright, trademark, patent or proprietary notice affixed to the media or packaging of the Software or displayed by or in the Software; (xii) access or attempt to access Zorroa’s network, databases, or systems (other than to download the Software); (xiii) perform load tests, network scans, penetration tests, ethical hacks or any other security auditing procedures on the Zorroa network; (xiv) Use the Software to conduct any competitive analysis of or with the Software; (xv) access the Software in order to compete or build a competitive product or service, or impair the market for the Software or any part thereof; or (xvi) copy any features, functions, graphics or other component of the Software.
Open Source Software. The Software may be accompanied by certain open source software (in source code and executable forms, as applicable) (the “Open Source Software”) that works with the Software. The Open Source Software forms, and is distributed as, a separate and independent software program from the Software (and the Software is not a modification of, or a work based on, the Open Source Software), even though the Open Source Software may have been aggregated or packaged with the Software for purposes of distribution. The Open Source Software is distributed under and subject to the terms and conditions of the applicable open source licenses set forth in the Documentation or in any “Third-Party Licenses ReadMe” file or similar file located in the installation directory for the Software (the “Open Source Licenses”). Licensee hereby agrees to the terms and conditions of the Open Source Licenses as they relate to the applicable Open Source Software.
Evaluation and Activation Key. Use of the Software may be conditioned upon the use by Licensee of an “activation key” that will be provided by Zorroa. The activation key may be a printable digital key, a non-printable file, or any other mechanism used by Zorroa for license activation purposes. Licensee shall not attempt to “hack,” “crack,” or otherwise override or disable the activation key.
Software Support. Zorroa shall, with respect to a Non-Commercial License, provide commercially reasonable support and assistance to Licensee in connection with its use of the Software during the term of the applicable Non-Commercial License, at no cost to Licensee, including installation support and trouble-shooting. All such support shall be subject to the availability of Zorroa personnel and to any policies established by Zorroa with respect to the nature, timing and availability of support. If Licensee acquires a Commercial License from Zorroa, the terms and conditions of support and maintenance of the Software with respect to such Commercial License shall be set forth in separate agreement by and between Zorroa and Licensee.
Fees and Payment. The fees applicable to Use of the Software shall be based upon, among other things: [(i) the applicable License Type; (ii) the characteristics of Licensee; and (iii) the number of Authorized Users]. All fees are payable in full, without deduction or offset, upon purchase of the applicable license, unless Zorroa agrees to invoice Licensee, in which case the applicable fees are payable within the period set out in the invoice (and if no period is set out in the invoice, within thirty (30) days of the date on which Licensee receives the invoice). All fees are non-cancelable and non-refundable. Zorroa may suspend Use of the Software, without liability to Zorroa, in the event that any amounts payable by Licensee are past due or Licensee is otherwise in breach of this Agreement. Licenses of certain License Types may be provided free of charge. All fees are exclusive of any applicable taxes, levies, duties or similar government charges or assessments of any nature, including sales taxes, value-added taxes and withholding taxes (collectively, “Taxes”). If Zorroa has a legal obligation to pay or collect Taxes, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Zorroa with an acceptable tax exemption certificate issued by the appropriate taxing authority.
Term and Termination.
Term. Licensee’s right to Use the Software pursuant to any given license shall expire at the end of the term for the License Type associated with such license, as such term is set out in Appendix A to this Agreement.
Termination by Licensee. Licensee may terminate this Agreement at any time by providing Zorroa with written notice of same and complying with Section 4.4.
Termination by Zorroa. Zorroa may terminate this Agreement, and therefore the license granted under Section 1.1, upon notice to Licensee: (i) if Licensee breaches any of the terms and conditions of this Agreement and, if curable, fails to cure such breach to the satisfaction of Zorroa within ten (10) days of Zorroa notifying Licensee of the breach; (ii) if Licensee breaches any of its payment obligations under this Agreement and fails to make full payment within five (5) days of Zorroa notifying Licensee of such breach; (iii) Licensee undergoes a “change of control” without the prior written consent of Zorroa; (iv) Licensee commits any act of bankruptcy, becomes insolvent or admits its insolvency (as defined or provided for in any applicable statute); (v) any proceeding, voluntary or involuntary, is commenced respecting Licensee pursuant to any statute relating to bankruptcy, insolvency, reorganization of debts, liquidation, winding up or dissolution; (vi) Licensee passes any resolution for its liquidation, winding up or dissolution; or (vii) Licensee ceases to carry on business in the ordinary course.
Obligations Upon Termination. Upon receipt by Licensee of written notice of termination from Zorroa, or termination by Licensee, Licensee shall immediately: (i) pay to Zorroa any outstanding fees payable hereunder; (ii) cease Using the Software; (iii) permanently delete all installed and back-up copies of the Software; and (iv) within five (5) days after the date of such termination, provide Zorroa with a written confirmation that Licensee has complied with all of the foregoing.
Survival. The provisions of Sections 1.3 (excluding clause (v) thereof), 1.4, 4.4, 5, 6.2, 7, 8, 9, 10 and 11 shall survive termination of this Agreement.
Intellectual Property and Confidential Information.
Ownership of Software. As between the parties, Zorroa shall own and retain all right, title and interest in and to the Software and Documentation and in all of the methods, processes, techniques and other intellectual property used in the Software, and in all of the patents, copyrights, trade secrets, trademarks and other intellectual property rights embodied in or related to the use of the Software. Licensee acknowledges and agrees that its possession, installation and use of the Software does not transfer to it any title to the Software nor the intellectual property in the Software, and that it is acquiring no rights of any nature to the Software except for the license expressly granted under Section 1.1. Licensee shall not take any action that would challenge, jeopardize, limit or interfere in any manner with Zorroa’s rights with respect to the Software.
Ownership of Derivative Works. During the course of the term of this Agreement, Licensee may provide feedback to Zorroa with respect to the performance and/or functionality of the Software, including, without limitation, any flaws, errors, bugs or other problems it discovers in the Software as well as suggested improvements or modifications of the Software. All feedback, information and suggestions provided by Licensee to Zorroa with respect to the Software shall be deemed “Ideas and Suggestions”. To the extent any modifications, improvements, enhancements, upgrades, new releases or other derivative Works of the Software are developed by Zorroa (collectively, “Derivative Works”) based upon Ideas or Suggestions submitted by Licensee, Licensee hereby irrevocably assigns to Zorroa all rights to such Derivative Works and in all of the methods, processes, techniques and other intellectual property used in such Derivative Works, and in all of the patents, copyrights, trade secrets, trademarks and other intellectual property rights embodied in or related to the use of such Derivative Works.
Confidential Information. During the term of this Agreement and for a period of five years thereafter, each receiving party (each, a “Recipient”) shall hold in strict confidence any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”) and shall not disclose Discloser’s Confidential Information to any third party nor use the Discloser’s Confidential Information for any purpose except for purposes expressly provided for in this Agreement. The above restriction shall not be construed to restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act by the receiving party, (ii) is lawfully received by the receiving party from a third party not in a confidential relationship with the disclosing party, (iii) was already rightfully known by the receiving party prior to receipt thereof from the disclosing party or (iv) after notice and an opportunity to object, is required by law to be disclosed. Notwithstanding the foregoing, each party’s confidentiality obligations set forth herein shall survive with respect to the other party’s Confidential Information that is a trade secret for so long as such Confidential Information continues to be a trade secret under applicable law.
Disclaimer of Warranties.
Limited Warranty. Zorroa warrants, if Licensee has acquired a Commercial License from Zorroa, that the Software will perform substantially in accordance with the Documentation (excluding any errors in the Documentation, as determined by Zorroa in good faith). Zorroa’s entire responsibility and obligation, and Licensee's exclusive remedy, for any breach of the foregoing warranty shall be for Zorroa to use commercially reasonable efforts to cause the Software to comply with such warranty. For avoidance of doubt, Zorroa does not provide any warranties with respect to the Software if Licensee has acquired a Non-Commercial License from Zorroa.
Warranty Disclaimer. EXCEPT AS PROVIDED IN SECTION 6.1 WITH RESPECT TO COMMERCIAL LICENSES, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR EQUITY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING OTHERWISE FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, ZORROA DOES NOT WARRANT THAT: (i) THE SOFTWARE WILL MEET LICENSEE’S NEEDS OR REQUIREMENTS; (ii) THE SOFTWARE WILL RUN WITHOUT INTERRUPTION OR BE ERROR FREE; OR (iii) THE SOFTWARE IS IMPENETRABLE OR OTHERWISE MEETS ANY SECURITY STANDARDS. FOR PURPOSES OF THIS SECTION 6.2 (BUT NOT FOR PURPOSES OF SECTION 6.1), REFERENCES TO SOFTWARE INCLUDE THE OPEN SOURCE SOFTWARE. ZORROA MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, REGARDING THE OPEN SOURCE SOFTWARE.
Limitation of Liability.
Direct Damages Only. ZORROA WILL ONLY BE LIABLE FOR DIRECT DAMAGES, SUBJECT TO SECTION 7.2. IN NO EVENT WILL ZORROA BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST OR DAMAGED DATA, OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ZORROA IS INFORMED OR OTHERWISE HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.
Monetary Cap on Damages. ZORROA SHALL NOT BE LIABLE TO LICENSEE FOR ANY DIRECT DAMAGES IF LICENSEE ACQUIRES A NON-COMMERCIAL LICENSE FROM ZORROA. IF LICENSEE ACQUIRES A COMMERCIAL LICENSE FROM ZORROA, LICENSEE AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF ZORROA AND ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES FOR ALL CLAIMS UNDER ANY AND ALL CIRCUMSTANCES RELATING TO THE SOFTWARE UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO THE FEES PAID TO ZORROA BY LICENSEE IN RESPECT OF THE SOFTWARE IN THE SIX (6) MONTH PERIOD PRECEDING THE CLAIM IN RESPECT OF SUCH LIABILITY.
Essential Terms. The limitation of liability in this Section 7 constitutes an essential part of this Agreement. A fundamental breach or breach of a fundamental term of this Agreement by Zorroa shall not limit the intended effect of Section 7 or any other provision of this Agreement which is intended to limit Zorroa’s liability. Licensee acknowledges that, but for the limitation of liability, Zorroa would not enter into this Agreement.
Intellectual Property Infringement Indemnity.
Indemnity. The indemnity Section forth in this Section 8 shall only apply if the Licensee has acquired a Commercial License from Zorroa. If any claim based upon an alleged direct infringement of a United States copyright or trade secret is asserted against Licensee by a third party (other than an affiliate of Licensee) by virtue of its Use of the Software in accordance with this Agreement, Zorroa will indemnify Licensee solely for direct damages (which, for greater certainty, excludes any accounting of profits) awarded to such third party and which the Licensee has been ordered to pay as a result of such claim, provided that Zorroa: (i) receives prompt written notice of such claim; (ii) has the sole and exclusive right, if it chooses, to control and direct the investigation and the defense or settlement of such claim; and (iii) receives the reasonable cooperation and assistance of Licensee as requested by Zorroa, at Zorroa’s expense.
Exclusions. Zorroa shall have no obligation or liability under Section 8.1 if the infringement relates to: (i) Use of the Software other than as expressly authorized under this Agreement; (ii) the combination, merger or interface of the Software with other software by Licensee or a third party; or (iii) compliance with any Licensee instructions or requests. Zorroa shall also have no obligation or liability under Section 8.1 in connection with any software or other technology not claimed to be owned by Zorroa, including without limitation, the Open Source Software and any materials related thereto.
Options. If the Software infringes, or in the reasonable determination of Zorroa is likely to infringe, any third party's intellectual property rights, Zorroa may, at its option, either: (i) procure for Licensee the right to continue Using the Software or replace or modify the Software (without loss of material functionality) so that it becomes non-infringing; or (ii) terminate this Agreement and refund the license fee paid (if any) by Licensee less a reasonable amount for any value received by Licensee.
Exclusive Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 8 STATE ZORROA’S ENTIRE LIABILITY AND OBLIGATIONS, AND THE EXCLUSIVE REMEDY OF LICENSEE, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
Inspection. Zorroa or its authorized representative may at any time after written notice to Licensee, electronically or otherwise, reasonably inspect Licensee’s (including any third party Authorized User’s) records, systems and facilities in order to ensure compliance with this Agreement. Licensee will provide (and ensure that each applicable third-party Authorized User provides) full cooperation in connection with any such inspection, including the provision of such additional documentation and information as Zorroa may reasonably request. Licensee shall ensure that the agreement between Licensee and each applicable third-party Authorized User includes the right for Zorroa to perform such inspections.
Remediation. If as a result of an inspection pursuant to Section 9.1, Zorroa determines that Licensee’s (or any applicable third-party Authorized User’s) installation or Use of the Software is not, or has not been, in conformity with this Agreement, Licensee shall promptly: (i) acquire from Zorroa the applicable license required to ensure compliance with such installation or Use; (ii) pay the applicable fees in respect of such license(s) for prior and future Use; and (iii) pay all reasonable costs and expenses incurred by Zorroa in respect of the applicable inspection.
Force Majeure. Zorroa shall not be liable for delays in performance or for non-performance due to unforeseen circumstances or any events or causes beyond Zorroa’s reasonable control, including cyber-attacks, acts of God, war, epidemic, fire, flood, weather, sabotage, strikes or labor disputes, civil disturbances or riots or governmental action.
Assignment. Licensee may not assign all or any part of its rights or delegate all or any part of its duties hereunder without the prior written consent of Zorroa. Any such purported assignment or delegation, without such consent, shall be void.
Notice.Except as otherwise specified in this Agreement, all notices, instructions, requests, authorizations, consents, demands and other communications hereunder shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when actually delivered); (b) by overnight courier (upon written verification of receipt); or (c) by certified or registered mail, return receipt requested (upon verification of receipt). Unless otherwise designated in writing by Licensee, all notices to Licensee shall be delivered to Licensee’s principal place of business, attention “Legal Department”. All notices to Zorroa shall be addressed as follows: Zorroa Corporation, 2120 University Ave., Berkeley, CA, 94707, Attn: Daniel Wexler. Any party may change the address to which notice is to be given by notice given in the manner set forth above.
Choice of Law and Venue. This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of Delaware, excluding its choice of law rules. Exclusive jurisdiction and venue for any lawsuits brought by either party arising from this Agreement or related to transactions under this Agreement shall be in the courts of the State of Delaware. In any event, this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Interpretation.The article and section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not in any way affect the meaning or interpretation of this Agreement. No failure or delay by either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to subsequently enforce any of its rights, whether relating to the same or a subsequent matter. This Agreement does not grant any rights or remedies to any person or entity that is not a party to this Agreement and no person or entity is a third party beneficiary of this Agreement. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, such provision shall be deemed modified to the extent necessary to render such provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest extent permissible the intent and the agreements of the parties.
Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior agreement concerning the Software. This Agreement may be amended, modified or supplemented only by written agreement of the parties. Zorroa is not bound by any of the terms and conditions of any purchase order, receipt, acceptance, confirmation or other correspondence provided by Licensee.
“Authorized Users” means, (i) if Licensee is an individual, such individual; or (ii) if Licensee is an Organization (A) Licensee’s employees (including contract employees), (B) independent contractors engaged by Licensee, (C) co-op and other students engaged by and otherwise working with or for Licensee, and (D) Licensee’s interns.
“Commercial” means any activity carried on with the intention of, or with a view to, generating revenue or other compensation, directly or indirectly, or that actually generates revenue or other compensation, directly or indirectly.
“Commercial License” means any license to Use the Software other than a Non-Commercial License.
“Non-Commercial License” means a license to Use the Software that is any of the following License Types: [TrialLicense and Education License].
“Usage Purpose” means: (i) where Licensee is engaged primarily in Commercial activities, the internal requirements of Licensee’s business in the ordinary course of such business; and (ii) where Licensee is engaged primarily in non-Commercial activities, the internal requirements of Licensee’s ordinary course activities. Notwithstanding the forgoing, the Usage Purpose shall not in either case include the Use of the Software by any Authorized User of an Organization for any personal projects where it is reasonably expected that revenue may be earned
“Use”, “Used” or “Using” means: (i) to access, initiate, execute, run, display, view and operate the Software, including to author, modify and run digital assets; and (ii) in the case of the Documentation only, to review and print.
LICENSE TYPE TERMS AND CONDITIONS
Commercial License Type
The Software may be Used for Commercial or non-Commercial purposes.
The number of Authorized Users of Licensee permitted to access and Use the Software is limited to a maximum of one (1), unless otherwise agreed by Zorroa.
Starting from the Effective Date and ending on: (i) the termination date as set out in the applicable purchase order/documentation accepted by Zorroa; or (ii) if there is no purchase order/documentation, one (1) month(s) from the Effective Date. The term may be extended beyond the expiration of the initial term upon the mutual agreement of the parties.