Last Revised: October 25, 2017

This is an agreement between you and Zentera Systems, Inc. (“Zentera”) and applies to your use of Zentera software products (“Software”) made available to you by Zentera, whether directly or through a third party such as a Zentera reseller or distributor (“Zentera Distributor”). This Agreement also applies to any technical support and maintenance services for the Software that are provided by Zentera directly to you (“Support Services”). However, this Agreement does not apply to support or maintenance provided by a Zentera Distributor or other third party. By downloading, installing or using the Software or clicking to agree, you confirm and agree that (a) you have read and completely understand this Agreement and (b) you agree to be legally bound by all of the terms and conditions in this Agreement. The terms of the license granted in this Agreement will also govern any Zentera upgrades and updates that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license agreement, in which case the terms of that agreement will govern.

IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR OTHERWISE USE THE SOFTWARE.

If you are entering into this Agreement on behalf of a company (or other entity) or if you are accessing the Software or receiving Support Services in your capacity as an employee, consultant or agent of a company (or other entity), you represent that you are an employee, consultant or agent of such company (or other entity) and you have the authority to agree (and be legally bound) on behalf of such company (or other entity) to all of the terms and conditions of this Agreement. FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) CONSTITUTES “YOU”.

For clarity, this Agreement is not intended to amend, replace or supersede any separate written agreement that you may have entered into directly with Zentera allowing you to distribute the Software (a “Distribution Agreement”). In the event of any conflict between this Agreement and such Distribution Agreement, the terms of such Distribution Agreement will control. Subject to the foregoing, this Agreement entirely replaces and supersedes all prior agreements with Zentera regarding your Software and Support Services.

License

Subject to the terms of this Agreement and your timely payment of the applicable licensing and support fees to Zentera or a Zentera Distributor, Zentera grants you a nonexclusive, non-transferable license to install and operate the Software on computer servers that are owned by you or under your exclusive management and control and subject to the maximum number of active users, term and other license limitations applicable to the type of license you have obtained from Zentera or a Zentera Distributor. If you have obtained a perpetual license, then the license will continue until the termination of this Agreement. If you have obtained a license with a term that is less than perpetual, then the license will apply only for the period of time for which you have obtained the license.

Restrictions

Except as otherwise agreed to by Zentera in a Distribution Agreement or other agreement signed by Zentera, you agree not to do, authorize or permit any third party to do, any of the following: (a) reproduce the Software except as reasonably necessary to install and operate the Software and maintain a backup of the Software in accordance with this Agreement; (b) distribute the Software; (c) sell, license, rent, assign, lease, lend, redistribute or sublicense the Software; (d) operate the Software, or allow third parties to operate the Software, for use with devices of personnel who are not your own employees or individual contractors, or otherwise for the benefit of third party company (or other entity), (e) modify, port, or create derivative works of the Software; (f) decompile, disassemble, reverse engineer or otherwise attempt to derive, reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Software by any means (except as and only to the extent any of these restrictions are prohibited by applicable law); and (g) remove, alter or obscure any copyright, trademark or other proprietary rights notice or labels on or in the Software. You will treat the Software as confidential information of Zentera and will protect the Software from all unauthorized access, use and disclosure. If you violate any of the restrictions set forth in this Agreement, this Agreement will automatically terminate without notice and your license to use the Software will immediately cease.

Support

If you have purchased Support Services (either as part of a Software license that includes Support Services or separately from a Software license), subject to the terms of this Agreement and your timely payment of the applicable licensing and support fees to Zentera or a Zentera Distributor, Zentera will provide Support Services to you for the Software you have licensed for the term of Support Services you have purchased. Subject to Zentera’s standard support policies, the Support Services will include (i) updates and upgrades of the Software commercially released by Zentera during the term of your Support Services and (ii) technical support regarding use of the Software. If different types or levels of Support Services are offered, then the Support Services will be provided in accordance with the specific terms of the type or level of Support Services you have purchased.

Feedback

Any suggestions, comments or other feedback provided by you with respect to the Software, Support Services and/or Zentera’s other products and services will constitute Zentera’s confidential information. Zentera will be free to use, disclose, reproduce, license and otherwise distribute, and exploit this feedback as Zentera sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

Conduct; Termination

You agree that you are solely responsible for your conduct with respect to the Software, and you agree that you will not do any of the following in connection with the Software:

  • Use the Software without payment of the applicable fees due to Zentera or a Zentera Distributor;
  • Use the Software in any manner that could damage, disable, overburden or impair the functioning of the Software in any manner;
  • Use the Software for any illegal or unauthorized purpose or engage in, encourage, or promote any illegal activity, or any activity that violates this Agreement;
  • Modify, adapt or hack the Software; or
  • Infringe upon or violate the rights of Zentera.

This Agreement, including the license granted to you in this Agreement and Support Services, will automatically terminate without notice to you or further action by Zentera in the event you violate any of the terms of this Agreement. In the event of such termination, you will not be entitled to any refund of amounts paid for Software licenses or Support Services.

Trademarks and Third Party Trademarks

Zentera’s name, logos and any other Zentera product, service name or slogan included in the Software are trademarks of Zentera and may not be copied, imitated or used, in whole or in part, without the prior written permission of Zentera. In addition, the look and feel of the Software, including all custom graphics, button icons and scripts are the service marks, trademarks and/or trade dress of Zentera and may not be copied, imitated or used, in whole or in part, without Zentera’s prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Software (“Third Party Trademarks”) are the property of their respective owners, and the use of such Third Party Trademarks will inure to the benefit of each trademark owner. The use of such Third Party Trademarks does not constitute: (i) an affiliation by Zentera and its licensors with such company; or (ii) an endorsement or approval by such company of Zentera and its licensors and its products or services.

Promotional Materials

Zentera may identify you as a Zentera customer on our website, in customer lists, and in other promotional materials. If you prefer that we not do so, please submit a request to Zentera at sales@zentera.com.

Ownership

Except for the license expressly stated in this Agreement, you are not granted any rights in or to the Software by implication, estoppel, or other legal theory, and all rights in and to the Software not expressly granted in this Agreement are hereby reserved and retained by Zentera.

Third Party Software

The Software includes components licensed from third parties. Please refer to the Software documentation for additional disclosures and terms regarding such third party components.

Modification of Agreement

This Agreement may be amended only (a) if you agree to a new version of this Agreement, such as during the installation of a new version or update of the Software, or (b) if you and Zentera otherwise agree in writing.

Disclaimers

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ZENTERA DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, THE SOFTWARE, SUPPORT SERVICES, ANY OTHER ZENTERA PRODUCTS AND SERVICES, AND THIRD PARTY TRADEMARKS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ZENTERA KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); AND (C) WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE. ZENTERA DOES NOT WARRANT THAT: (I) THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL BE ACCURATE OR MEET YOUR REQUIREMENTS; (II) THE OPERATION OF THE SOFTWARE WILL BE COMPLETELY SECURE, UNINTERRUPTED OR ERROR-FREE; OR (III) ANY DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY ZENTERA OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.

Indemnification

You agree, at your sole expense, to defend, indemnify and hold harmless Zentera, Zentera’s licensor, and the Zentera Distributors from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (a) your conduct; (b) your violation (or alleged violation) of this Agreement or the rights of any third party; or (c) any use of data or other information in a manner contrary to applicable laws or the terms and conditions of any employer documents or policies.

Limitation of Liability

IN NO EVENT WILL: (A) ZENTERA OR ANY ZENTERA DISTRIBUTOR BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL OR INTERRUPTION OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, SUPPORT SERVICES, ANY OTHER ZENTERA PRODUCTS OR SERVICES, OR THIRD PARTY TRADEMARKS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ZENTERA OR A ZENTERA DISTRIBUTOR HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE TOTAL LIABILITY OF ZENTERA AND ANY ZENTERA DISTRIBUTOR ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT RECEIVED BY ZENTERA (OR, AS APPLICABLE, BY A ZENTERA DISTRIBUTOR) FROM YOU FOR YOUR USE OF THE SOFTWARE OR RECEIPT OF SUPPORT SERVICES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED IN ITS ESSENTIAL PURPOSE.

No Third Party Beneficiaries

There will be no third party beneficiaries to this Agreement.

Modifications to the Software

Zentera reserves the right, at its sole discretion, to review, improve, modify or discontinue, temporarily or permanently, the Software and/or any features, information, materials or content on the Software with or without notice to you. You agree that Zentera will not be liable to you or any third party for any modification or discontinuance of the Software or any portion thereof.

Export Limitations

You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software for any purposes prohibited by United States law, including, but not limited to, the development, design, manufacture or production of nuclear missiles, or chemical or biological weapons.

US Government Rights

The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other end users pursuant to this Agreement. Unpublished rights reserved under the copyright laws of the United States.

Governing Law

This Agreement, including all matters relating to the interpretation and effect of this Agreement, will be governed by the laws of the State of California, excluding its conflict of laws rules to the contrary.

Arbitration

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH ZENTERA AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM ZENTERA.

You and Zentera agree to arbitrate any dispute arising from this Agreement or relating to the Software or Support Services, except that you and Zentera are not required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.

You and Zentera agree that you will notify each other of any dispute within 30 days of when it arises, that you will attempt informal resolution prior to any demand for arbitration, that any arbitration will occur in San Jose, California, and that arbitration will be conducted confidentially by a single arbitrator in accordance with the Rules of the American Arbitration Association. You and Zentera also agree that the state or federal courts in Santa Clara County, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND ZENTERA WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.

General

If any provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. Neither party will be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent such default or delay is caused by any event beyond the reasonable control of the affected party, including, without limitation, an act of God, act of governmental body or military authority, fire, explosion, flood, epidemic, riot or civil disturbance, war, sabotage or storms, or a delay or performance failure by a third party.