This Agreement becomes a legally binding contract between Zumasys, Inc. or its subsidiaries (“Zumasys”) and the party acquiring the license to use the Software (“Customer”) when Customer or its agent first (1) clicks the “I Accept” button or otherwise indicates electronic acceptance, or (2) downloads, installs, accesses, or uses the Software.
In addition to the definitions included elsewhere in this Agreement, the following definitions will apply:
“Agreement” includes only this End User License Agreement and the Order.
“Order” means the Zumasys acknowledgement stating and accepting the Customer order for Software.
“Software” means the Zumasys proprietary software as stated in the Order.
“User Manual” means the then-current, generally available user guide for the applicable Software, which can be found on the Zumasys website.
2. Grant of Licenses.
2.1 Software. Subject to ongoing compliance of this Agreement by Customer, Zumasys grants to Customer a nonexclusive license to install and use the Software, in object code format, for Customer’s internal purposes only.
2.2 User Manual. Zumasys authorizes Customer to reproduce and use a User Manual only as reasonably necessary to support its licensed use of the Software.
2.3 Term of License. If Customer pays in full for the Software and uses an activation key provided by Zumasys to install the Software, the term of the license will continue for so long as Customer does not breach any of the provisions of this Agreement.
2.4 Evaluation License. If Customer does not pay in full for the Software or does not receive an activation key from Zumasys, the license will be limited to a 30-day evaluation period and Customer’s right to install and use the Software automatically terminates at the end of the 30-day evaluation period. Under no circumstances will the evaluation period extend beyond 30 days except with prior written consent signed by an authorized representative of Zumasys.
3.1 Ownership. Despite any “sale” terminology in this Agreement, the Software is licensed, not sold. Customer shall not receive any ownership or title in the Software, and Customer shall not receive any rights to the Software except as expressly stated in Section 2.
3.2 Other Restrictions. Customer acknowledges that the Software and its components are protected by copyright, trade secret, and other laws. Customer shall not (a) distribute, modify, publicly display, publicly perform, sublicense, or create derivative works of the Software; (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code or other non-public features from the Software; (c) probe, defeat, disable or circumvent any encryption or other protective mechanism related to the Software; (d) use the Software for service bureau or time sharing purposes, or in any way allow third parties to exploit the Software; (e) remove or modify any proprietary markings in the Software; or (f) enable, encourage or allow anyone to do any of the foregoing.
3.3 Compliance with Laws. Customer shall comply with all applicable local, state, federal and foreign laws.
4. Limited Warranty.
4.1 Limited Warranty. For a period of 90 days after Customer’s receipt of the Software, Zumasys warrants that the Software will perform substantially as described by the specifications in the User Manual. All warranty claims must be made within the 90-day warranty period by notifying Zumasys via email at [email protected] or by telephone at 949-346-4228.
4.2 Evaluation Disclaimer. Despite Section 4.1, during any evaluation period (as described in Section 2.4), the Software is provided to Customer “AS IS” and without warranty of any kind.
4.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTION 4, ZUMASYS DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, SECURITY, OR COMPATIBILITY. Zumasys does not warrant that the Software will perform without error or that it will run without interruption. Zumasys provides no warranty, and will have no responsibility, for any claim arising out of: (a) modification of the Software made by anyone other than Zumasys; or (b) use of the Software in combination with any operating system not authorized in the User Manual, or with hardware or software forbidden by the User Manual.
4.4 Exclusive Remedies. If Customer makes a timely and valid warranty claim, Zumasys shall, at Zumasys’ discretion, either repair, replace, or refund the price paid for the defective Software. The warranty term for the replacement Software will be 30 days after its delivery date or the remainder of the original warranty term, whichever is longer. This paragraph states Customer’s sole and exclusive remedy for any breach of warranty.
5. Support and Maintenance.
5.1 First Year Services. With any new license (excluding an evaluation license), Customer shall pay for the Services (as described in Section 5.2) for at least the first 12 months.
5.2 Support and Maintenance Services. During the Term, and subject to payment of applicable support and maintenance fees and the provisions of this Agreement, Zumasys shall provide one or more of the following support and maintenance services (collectively, the “Services”):
- Updates and Upgrades. From time to time at Zumasys’ discretion, Zumasys may develop and provide Customer with updates or upgrades to the Software. Customer shall install all updates and upgrades within a reasonable time after receipt. Updates or upgrades will not under any circumstances include new software developed or acquired and marketed by Zumasys as separate products or services.
- Support. Zumasys will provide technical support to Customer for the Software via telephone, email and web-conferencing during Zumasys’ normal business hours. Zumasys may, in its sole discretion and for an additional fee, offer 24x7x365 emergency support to Customer.
- Error Correction. If Customer determines that an Error exists in the Software during the Term, Customer shall first follow applicable error procedures specified in the User Guide. If the error procedures do not correct the Error, the Customer shall promptly contact Zumasys via email at [email protected], specifically describing the defects. Upon receipt of notification of a reported Error, Zumasys will attempt to reproduce and verify the Error and, if verified, Zumasys will attempt to correct the Error within the time and priority reasonably determined by Zumasys. “Error” means an error in coding or logic that causes the Software not to substantially function as described in the User Guide.
- Additional Features. Zumasys may provide or make available certain components or additional features to the Software.
5.3 End of Services. Customer understands and agrees that if it elects not to renew the Services or the Services otherwise end, Customer may lose access to certain components or additional features of the Software. Zumasys may, in its sole discretion and for an additional fee, offer end of life support or support services for legacy products. However, nothing in this Agreement shall require Zumasys to provide any Services for any Software Zumasys no longer chooses to support or maintain.
6. Fees and Payment Terms.
6.1 License Fees. Customer shall pay Zumasys the license fees and, if applicable, the expenses and other charges as stated in the Order. Unless the Order states that payment is due earlier, Customer shall pay all invoices in full within 30 days after the date of the invoice.
6.2 Taxes. Customer shall pay all taxes, duties, tariffs, and other government charges of any kind that are imposed on Customer’s purchase of the Software, excluding only taxes based on Zumasys’ net income.
6.3 Software Audit. During the Term of this Agreement and at any time during the two-year period after the end of this Agreement, Zumasys may audit Customer’s use of the Software following 15 days prior written notice. Customer shall cooperate with the audit, and shall provide Zumasys or its representatives with access to any books, computers, records, or other information that may relate to the use of the Software. The audit will not unreasonably interfere with Customer’s business activities.
6.4 Late Payments. If Customer fails to timely pay any fees or expenses due to Zumasys or, if through the audit or otherwise, Zumasys discovers unauthorized use, distribution, or exploitation of the Software, Customer shall, within 10 days after Zumasys’ written notice of default, (a) pay Zumasys the total amount of the unpaid fees and expenses, (b) pay Zumasys a late fee at the rate of 10% per annum or the maximum rate permitted under applicable law, whichever is less, commencing 30 days after the due date, and (c) reimburse Zumasys for the cost of the audit and collection, including reasonable attorneys’ fees and accountants’ fees. This paragraph is not intended as an exclusive remedy or an election of remedies.
7. Confidential Information.
7.1 Definition. “Confidential Information” means all trade secret, proprietary or other confidential information or materials in written, oral, visual, electronic, or other format provided (a) the information or materials are designated as confidential at the time of disclosure by legend or other markings, or (b) a reasonable person knows or reasonably should understand the information or materials are confidential because of the circumstances of disclosure or the nature of the information or materials disclosed. For example, Confidential Information includes the non-public features and functions of the Software and quotations and pricing.
7.2 Exclusions. Despite the preceding paragraph, Confidential Information does not include information that: (a) is in the possession of the receiving party (“Recipient”) at the time of disclosure; (b) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (c) is rightfully received by Recipient from a third party without obligation of confidentiality. Recipient is on notice that the Confidential Information may include the valuable trade secrets of the disclosing party (“Discloser”).
7.3 Restrictions. Recipient shall use Confidential Information received from Discloser only for the purposes of this Agreement (the “Purpose”). Recipient shall not (a) disclose Confidential Information to any employee, contractor or representative of Recipient unless that person needs to know the Confidential Information to facilitate the Purpose, and that person is bound by fiduciary or contractual duties to Recipient that are at least as stringent as this Section 7. Recipient shall protect Discloser’s Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser, in writing, of any unauthorized use or disclosure of Confidential Information that comes to Recipient’s attention.
7.4 Legal Mandate. If disclosure of Confidential Information is required by court order or other government demand that has the force of law, Recipient shall, to the extent permitted by applicable law, provide prompt written notice to enable Discloser to seek a protective order.
7.5 Retention of Rights. This Agreement does not license or transfer ownership of any Confidential Information. Discloser will retain all right, title, and interest in all of its Confidential Information and any intellectual property rights derived from any disclosed Confidential Information. All Confidential Information is disclosed “AS-IS” and without warranty of any kind.
7.6 Exceptions and Immunity. Nothing in Section 7 prohibits (a) the reporting of possible violations of federal or state law to any government agency or entity (including the U.S. Department of Justice, the Securities and Exchange Commission, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, the National Labor Relations Board, the Congress, and any agency Inspector General), or (b) the making of other disclosures that are protected under the whistleblower provisions of federal or state law. No prior authorization or later notification is required to make any of these disclosures.
8. Limitation of Liability.
ZUMASYS’ CUMULATIVE LIABILITY FOR ALL CLAIMS, LOSSES, EXPENSES AND DAMAGES OF ANY NATURE ARISING OUT OF OR RELATED IN ANY WAY TO THE SOFTWARE OR THIS AGREEMENT WILL NOT EXCEED THE GREATER OF $50,000 OR THE CUMULATIVE AMOUNT OF THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT. IN NO EVENT WILL ZUMASYS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA, GOODWILL OR SAVINGS. THE LIMITATIONS IN THIS SECTION APPLY: (a) WHETHER THE CLAIM IS MADE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, WARRANTY, OR OTHERWISE; (b) EVEN IF ZUMASYS IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES, AND EVEN IF THE DAMAGES WERE FORESEEABLE; AND (c) EVEN IF CUSTOMER’S REMEDIES FAIL THEIR ESSENTIAL PURPOSE. If applicable law limits the application of Section 8, Zumasys’ liability will be limited to the maximum extent permissible.
9.1 Termination. The duration of each Software license under this Agreement is stated in Section 2. The term of this Agreement will automatically terminate concurrently with the ending of the last Software license (the “Term”). However, any early termination of this Agreement shall concurrently terminate all licenses granted under this Agreement. Any Services shall also terminate concurrently with each Software license.
9.2 Early Termination. This Agreement may be terminated immediately by either party if the other party (a) materially breaches this Agreement and fails to cure the breach within 30 days after delivery of written notice of the breach; (b) fails to function as a going concern business; or (c) is the subject of a voluntary or involuntary petition in bankruptcy, which is not dismissed within 60 days after the petition is filed. The right to terminate is not intended as an exclusive remedy or an election of remedies.
9.3 Post Termination. Upon any termination of this Agreement, Customer shall immediately stop all use, uninstall, and destroy all copies of the Software in its possession or control. The following will survive any termination of this Agreement: Sections 3, 4, 6, 7, 8, 9.3 and 10, and any other provision of this Agreement that must survive in order to fulfill its essential purpose.
10. Other Important Provisions.
10.1 Interpretation. This Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will favor or disfavor either party as a result of authorship. All references to “including”, “for example”, or “such as” are intended to be interpreted in the broadest sense and without limitation.
10.2 Export. Customer shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export the Software to, a country subject to a United States embargo (such as Cuba, Iran, North Korea, Sudan, and Syria).
10.3 No Assignment. Except as part of a merger or acquisition of all or substantially all the assets or equity interests of Customer, Customer shall not assign or otherwise transfer this Agreement without the prior written consent of Zumasys. Any attempted assignment in violation of this paragraph shall be considered ineffective and void, and Zumasys may thereafter terminate this Agreement at any time in its sole discretion.
10.4 Entire Agreement. This Agreement, including the Order, embodies the complete contract between the parties pertaining to its subject matter. All prior and contemporaneous agreements, understandings, representations and negotiations, whether verbal, written or electronic, are merged into and superseded by this Agreement. No amendment or other modification to this Agreement will be effective unless made in writing and signed by an authorized representative of each party. If Customer issues a purchase order or similar document, it will be for Customer’s administrative convenience only and will not constitute part of this Agreement or an amendment to this Agreement.
10.5 Dispute Resolution. All disputes between the parties shall be construed according to the laws of the State of California excluding its conflict of laws provisions. Any action brought by either party against the other party in any court, whether federal or state, shall be brought exclusively within a court of competent jurisdiction in Orange County, California. The prevailing party in any litigation shall be entitled to an award of reasonable attorneys’ fees and costs.
10.6 Equitable Relief. Breach of Section 3 or 7 may cause irreparable injury, for which monetary damages may not provide adequate compensation. Therefore, in addition to any other remedy, the non-breaching party may be entitled to injunctive and other equitable relief against such breach or threatened breach, without proving actual damages.
10.7 Other Provisions. This Agreement (a) does not create any agency, partnership, joint venture, or fiduciary relationship; (b) will inure to the benefit of and be binding upon the parties, their successors, and permitted assigns; (c) cannot be waived by failure to enforce any provision, except in writing; (d) will be construed as severable, so the invalidity or unenforceability of any provision will not affect the validity or enforceability of any other provision of this Agreement; (e) has been entered into with the authority of each party and is legally binding on each party; (f) may be signed in counterparts, with facsimiles of original signatures binding as original; and (g) is not for the benefit of any third party other than the parties’ respective successors and permitted assigns.
10.8 Notices. Notices required to be given under Section 9.2 (Early Termination) or to notify the other party of a change of address, shall be made in writing and shall be delivered to the other party by FedEx or equivalent overnight delivery, or by personal delivery to an officer or authorized representative. All other notices under this Agreement may also be delivered by email to the principal contact of the other party, except warranty claims may also be delivered as stated in Section 4.1
Notice to Zumasys:
Attention: Chief Operations Officer
1050 Calle Amanecer, Suite A
San Clemente, CA 92673