Zorus Archon License Agreement
This Zorus Archon License Agreement (the “Agreement”) is an agreement between Zorus, Inc., a Delaware corporation (“Zorus”) and you or the entity you represent, whether you are accessing Zorus Archon as an managed services provider (including as an MSP Agent) (“MSP”) to provide Managed Services to Clients, or as an end-user customer (including as a Customer Agent to perform services for your own organization) (“Customer User”) (MSPs and Customer Users are collectively referred to as “You” and “Your”). This Agreement is dated as of the date of Your acceptance of this Agreement. This Agreement includes, and incorporates by this reference, any Order, any Service Terms and all amendments and addenda to this Agreement. Zorus and You are sometimes referred to herein collectively as the “Parties” and individually as a “Party.”
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOUR USE OF ZORUS ARCHON AND THE SERVICES.
By indicating acceptance of this Agreement by registering for an account, via click through or other electronic means offered by Zorus, or otherwise accessing or using Zorus Archon, You hereby agree to be bound by the terms and conditions of this Agreement and all terms incorporated by reference.
Any individual accepting this Agreement on Your behalf represents and warrants that he or she has the authority to bind You to this Agreement.
Zorus reserves the right to change any of the terms and conditions contained in this Agreement or any Policies, at any time and in its sole discretion. If Zorus makes any changes, Zorus will provide you with an amended Agreement or Policy. Your continued use of the any Zorus Archon, Zorus Software, or any products or Services provided hereunder after receipt of such amendments will constitute Your acceptance of such amendments. Zorus encourages You to frequently review this Agreement and any other applicable Policies and guidelines to ensure You understand the terms and conditions that apply to your use of Zorus Archon and Services. In the event You do not agree to the terms and conditions contained in this Agreement or any Policies, or amendments thereto You must stop using Zorus Archon and the Services.
Zorus and You hereby agree as follows:
SECTION 1. DEFINITIONS
Terms used in this Agreement with their initial letters capitalized and not otherwise defined will have the meanings specified in Appendix 1.
SECTION 2. YOUR RIGHTS
2.1 Rights to Use Zorus Archon as an MSP. Subject to the terms of this Agreement, Zorus hereby grants to MSP a limited, nonexclusive, nontransferable, nonsublicensable, revocable right during the Term to:
(a) access and use Zorus Archon to provide Managed Services to the Client set forth in the Order;
(b) purchase Subscriptions and use Subscription Services to provide Managed Services to the Client set forth in the Order; and
(c) access and use diagnostic and other tools available through Zorus Archon to acquire and provide Services, third party service offerings and Managed Services to the Client set forth in the Order.
2.2 Rights to Use Zorus Archon as a Customer User. Subject to the terms of this Agreement, Zorus hereby grants to each Customer User a limited, nonexclusive, nontransferable, nonsublicensable, revocable right during the Term to:
(a) access and use Zorus Archon to provide Managed Services on Customer User’s own behalf solely for Customer User’s internal business purposes;
(b) purchase Subscriptions and use Subscription Services to provide Managed Services on Customer User’s own behalf solely for Customer User’s internal business purposes;
(c) use other functionality of Zorus Archon on Customer User’s own behalf solely for Customer User’s internal business purposes; and
(e) access and use diagnostic and other tools available through Zorus Archon and otherwise utilize Zorus Archon and Services on Customer User’s own behalf solely for Customer User’s internal business purposes.
2.3 Restrictions; Limitations.
(a) Use Restrictions. You may not use Zorus Archon or any Services in any manner or for any purpose other than as expressly permitted by this Agreement. Without limitation of the foregoing, the license granted under this Section 2 does not include or authorize: (i) publicly performing or publicly displaying Zorus Archon or any Services; (ii) modifying, disassembling, decompiling, reverse engineering or otherwise making any derivative use of Zorus Archon or any Services or using or accessing Zorus Archon or any Services to build a competitive product or service; (iii) using any data mining, robots or similar data gathering or extraction methods except as provided by Zorus Archon or Services; (iv) downloading (other than page caching) any portion of Zorus Archon or any information contained on Zorus Archon; (v) performing or disclosing any benchmarking or performance testing of Zorus Archon; (vi) using any Client Data other than to provide Managed Services to the Client from which the Client Data was generated, input or collected; (vii) selling, licensing, renting, leasing, assigning, distributing, displaying, hosting, disclosing, outsourcing or otherwise commercially exploiting Zorus Archon except as otherwise specifically authorized; or (viii) using Zorus Archon or any Services other than for its intended use. During and after the Term, You will not assert, nor authorize, assist or encourage any third party to assert, against any of the Zorus Parties, any patent infringement or other intellectual property infringement claim regarding Zorus Archon or any Service that You or any Zorus Archon User has used. The rights granted under this Section 2 are conditioned on Your continued compliance with this Agreement (including, without limitation Your and Your Zorus Archon User’s compliance with the Policies), and will immediately and automatically terminate if You does not comply with any material term or condition of this Agreement.
(b) Data and Other Limitations. Use of Zorus Archon, Services and related products are subject to the data limits or other usage limits specified in Your Order. The license granted to You hereunder is subject to Your compliance with such data and usage limits.
2.4 Changes to Zorus Archon and Services. Zorus may change Zorus Archon from time to time, including but not limited to changing or removing features or functionality of Zorus Archon or changing or removing Services from Zorus Archon. Zorus will use reasonable efforts to notify You of any material change to Zorus Archon or removal of any material Services.
2.5 Suspension of access to Zorus Archon. Zorus may, in its sole discretion and in addition to any other remedies available to Zorus, immediately temporarily suspend access to or use of Zorus Archon by You or any Zorus Archon User if You or any Zorus Archon User violates any applicable material restriction or obligation in this Agreement or any Policies, or if in Zorus’s reasonable judgment, Zorus Archon, any Service or any component thereof is about to suffer a significant threat to security or functionality as a result of Your or any Zorus Archon Users’ access to or use of Zorus Archon or a Service. Zorus will provide reasonable notice to You of any such suspension in Zorus’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Zorus will use reasonable efforts to re-establish access to Zorus Archon or the affected Service promptly after Zorus determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured. Zorus may terminate this Agreement if any of the foregoing causes of suspension is not cured within thirty (30) days after Zorus’s initial notice thereof. Any suspension or termination by Zorus under this Section 2.5 will not excuse You from Your obligation to make payment(s) under this Agreement.
SECTION 3. ELIGIBILITY; REGISTRATION; SERVICE ACCESS AND PURCHASES
3.1 Eligibility. Each Zorus Archon User must be at least 18 years old to access or use Zorus Archon. You represent and warrant that each Zorus Archon User is not an Excluded Individual.
3.2 Registration. In order to access and use Zorus Archon, each Zorus Archon User will need to register through the Site and accept this Agreement. While an Administrator may share Administrator rights with one or more Service Agents, Zorus Archon Accounts are Zorus Archon User specific and may not be shared or transferred. You will ensure that each Zorus Archon User will: (a) provide accurate, truthful, current and complete information when creating a Zorus Archon Account; (b) maintain and promptly update the Zorus Archon User’s Zorus Archon Account information; (c) maintain the security of Zorus Archon User’s Zorus Archon Account by not sharing its password with others and restricting access to the Zorus Archon Account and their computer or mobile device; (d) promptly notify You or Zorus if the Zorus Archon User discovers or otherwise suspect any security breaches related to the Zorus Archon User’s Zorus Archon Account; and (e) take responsibility for all activities that occur under a Zorus Archon User’s Zorus Archon Account and accept all risks of unauthorized access. Each Zorus Archon User’s login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else. Upon termination of the Term of the Agreement, Zorus Archon User’s right to access and use Zorus Archon will terminate.
3.3 Service Access and Licenses.
(a) Subscription Services. Zorus will make Subscription Services available to You through Zorus Archon, subject to the license grants and limitations set forth in Section 2 and any additional Service Terms, which will be available at the time of purchase of a Subscription. You must have one Subscription for each individual Client Personnel, Customer Personnel and Zorus Archon User who will use the Subscription Services, whether such use is individual use or through You by providing Managed Services. Without limiting the foregoing, You shall ensure that no Client Personnel, Customer Personnel or Zorus Archon User uses the Zorus Archon or any Service without a Subscription. Subscriptions are either monthly, annual or a longer period as agreed by the Parties in an Order (each, a “Subscription Period”). Each Subscription Period will automatically renew on its anniversary date for a subsequent Subscription Period of the same duration and at the then current Subscription Fees unless You elect not to renew the applicable Subscription at least thirty (30) days prior to the renewal date for that Subscription. You may elect to not renew any of Your Subscriptions by (i) visiting the Subscriptions page of your Zorus Archon Account, selecting the applicable Subscription and clicking the “Disable Renew” button or (ii) sending Zorus written notification at least thirty (30) days prior to the end of the then current Subscription Period.
(i) To the extent that any Service requires any Zorus Software to be downloaded or deployed into Client’s environment or any Client Personnel’s machine, You will notify the Client that You will install and use the Zorus Software and obtain Client’s permission to download or deploy the other Zorus Software. Without limiting the foregoing, you will obtain from each Client all legally required consents and authorizations, as required under applicable law, to install automatic updates to the Zorus Software. You will pass through any license terms provided by Zorus that apply to the Zorus Software and will obtain Client’s agreement to those terms.
(ii) In the event You or any Zorus Archon User receive Zorus Software from Zorus or from a third party, Your use is governed by the license terms that are presented to You or the Zorus Archon User that You or the Zorus Archon User must accept in order to use the Zorus Software. Any Zorus Software is licensed, not sold. Unless Zorus notifies You otherwise, the Zorus Software license terminates when Your license to use Zorus Archon terminates. You must then promptly uninstall any Zorus Software from all of Your and each Zorus Archon Users’ computers or devices, or Zorus may disable it. You must not work around any technical limitations in the Zorus Software.
(c) Client Data.
(i) In connection with Zorus Archon and Services, Zorus may collect Client Data. You hereby authorize Zorus to: (1) use Client Data to provide Zorus Archon and the Services to You, which may include analyzing the Client Data to provide You with recommendations about products or services of Zorus and third parties that may be of interest to Your Clients; and (2) use Client Data in an aggregated or de-identified basis (“Aggregated Data”) for the purpose of improving Zorus Archon and the Services, and to develop new product and service offerings (collectively, the “Purpose”).
(ii) You are solely responsible for the content of any data or materials that You or Zorus Archon Users use, process, submit, provide to, or make available through, Zorus Archon or any Services, including, without limitation, Client Data. Without limiting the generality of the foregoing, You are responsible for: (1) the nature, quality and accuracy of the Client Data, (2) compliance of the Client Data with Policies and applicable laws, regulations and ordinances; and (3) any third party claims relating to the Client Data.
(iii) You represent and warrant to Zorus that: (1) You have all rights in the Client Data necessary to grant the rights contemplated by this Agreement; (2) the storage, use or transmission of the Client Data or use of Zorus Archon or any Service by You or any Zorus Archon Users does not violate Policies or any applicable laws, regulations or ordinances or this Agreement; (3) providing Zorus access to any network, computer or communications system, software application, or network or computing device does not violate any agreement or obligation between You and a third party (including a Client) or any applicable laws, regulations or ordinances or this Agreement; and (4) You have provided all legally required notices, and obtained all legally required consents and authorizations, as required under applicable law for Zorus to collect, use and disclose Client Data in accordance with the terms of this Agreement.
SECTION 4. PAYMENTS AND TAXES
4.1 Subscription Services; Automatic Renewal
(a) Subscription Fees. You will pay Zorus the subscription fees and other amounts specified in the applicable Order (if any) for the number of Subscriptions You order (“Subscription Fees”). Any discount applicable to your Order will be described in Your Order at the time of checkout.
(b) Payment. Unless otherwise agreed, You will pay Subscription Fees for a full Subscription Period for each Subscription You purchase using the payment card or other payment method You provide at the time You place Your Order for such Subscriptions. Thereafter, You hereby authorize Zorus to charge the Subscription Fee for each Subscription to the payment card or other payment method You provided on or about the 1st day following the renewal of the Subscription Period applicable to the Subscription. If the payment card or other payment method You provided is expired or otherwise cannot be charged, Zorus may suspend or terminate all of the Subscriptions that cannot be paid for until You provide a valid payment card or other payment method. Your Subscription Fee charges for each Subscription will continue each year unless and until You terminate the Subscription in accordance with Section 3.3(a) of this Agreement.
(c) Adding and Reducing Subscriptions. You may add additional Subscriptions to an existing Order at any time (“Added Subscriptions”). Unless otherwise agreed to by Zorus, the Subscription Periods for Added Subscriptions will commence on the date of purchase and will terminate or renew on the same date and on the same terms as the Subscriptions that were originally placed on the Order. You may reduce the number of Subscriptions, provided that any such reduction will not take effect until the next applicable billing cycle.
4.2 Billing Terms
(a) Payment. Zorus will issue You invoices for each Service purchase within fifteen (15) days after the date of Your Order. Invoices for the Services will continue to be sent to You each year unless and until You elect not to renew the Services as described in Section 3.3(a). You will pay each of Zorus’s invoices within thirty (30) days after Your receipt of the invoice.
(c) General. You will make all payments at the address or account for Zorus set forth on the applicable invoice. All Subscription Fees and Service fees payable under this Agreement are denominated in United States Dollars.
(d) Interest. Any Subscription Fees or Service fees not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable usury law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by Zorus to collect any amount not paid when due, You will pay or reimburse Zorus’s costs of collection (including, without limitation, any attorneys’ fees and court costs). Zorus may accept any check or payment in any amount without prejudice to Zorus’s right to recover the balance of the amount due or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere will be construed as an accord or satisfaction.
4.3 Subscription Fees on Suspension or Termination; Refund Policy. In the event Zorus suspends or terminates Your access to or use of any Services pursuant to the Agreement, You will not be eligible for any refund. Within 15 days of Your purchase of a Service, You may request a refund of, and Zorus will refund to You, the Service fees You paid for any unused Service that You purchased from Zorus. If You have used any Services, You are not eligible for a refund.
4.5 Taxes. Subscription fees, Service fees and other amounts payable to Zorus under this Agreement do not include any sales, use, gross receipts, value added, or other taxes, customs, duties, fees or other charges assessed or imposed by any governmental authority on any Party (“Taxes”). You will pay or reimburse Zorus on demand all such Taxes imposed on any Party (other than taxes imposed on or measured by Zorus’s net income) with respect to any Service or measured by any amount payable to Zorus under this Agreement or provide Zorus certificates or other evidence of exemption or prior payment of such Taxes. Zorus will attempt to include applicable Taxes at checkout in jurisdictions in which Zorus is aware of a duty to collect or pay Taxes. However, Your obligation to pay or reimburse Zorus for Taxes is not affected by Zorus’s failure to include such Taxes on any Order.
SECTION 5. TERM AND TERMINATION
5.1 Term. The term of this Agreement will commence on the Effective Date and will continue as long as any Subscription Period is still in effect, unless terminated earlier pursuant to Section 2.5 or 5.2 of this Agreement (the “Term”).
5.2 Termination for Material Breach. If either Party commits a material breach of or default under this Agreement, then the other Party may give notice that the breach or default has occurred (including, but not necessarily limited to, a statement of the facts relating to the breach or default, the provisions of this Agreement that are in breach or default, and the action required to cure the breach or default) and that the Term will terminate pursuant to this Section 5.2 if the breach or default is not cured within thirty (30) days after receipt of notice (or such later date as may be specified in such notice). If the specified breach or default is not cured within thirty (30) days after receipt of such notice (or such later date as may be specified in such notice), then the Term will terminate.
5.3 Effect of Termination. In the event of any termination of the Term:
(a) all of Your and each Zorus Archon Users’ rights under this Agreement will immediately terminate and all Zorus Archon Users will immediately cease any access or use of Zorus Archon and any Services;
(b) if Zorus terminates the Term for material breach by You under Section 5.2, then You will remain responsible for all fees that You have incurred through the date of termination and You must pay within thirty (30) days all amounts that have accrued prior to such termination of the Term, as well as all sums remaining unpaid for any Order under the Agreement for any remaining Subscription Period or otherwise plus related taxes and expenses;
(c) if You are an MSP, You will reasonably cooperate with Zorus to transition your Clients to Zorus or another service provider, including, without limitation, providing relevant Client contact information and Client Data to Zorus or the other service provider and You will ensure that Your client will consent to Your sharing of the Client Data and Client’s other contact information as described in this section;
(d) Zorus will have no obligation to maintain any Client Data or to forward any Client Data to You or any third party; and
(e) sections 1, 2.3, 3.3(c), 5.3, 6, 7, 8, 9, 10 and 11 of this Agreement, together with any other provisions that by their nature are intended to survive, will continue to apply in accordance with their terms.
If You terminate this Agreement for material breach by Zorus under Section 5.2, then Zorus will refund to You within thirty (30) days of termination any unused pre-paid Subscription fees on a pro rata basis for any remaining Subscription Period following the month in which the termination is effective.
SECTION 6. YOUR RESPONSIBILITIES.
6.1 Security and Backup. You are responsible for maintaining appropriate security, protection and backup of all Your systems and data, including, but not limited to the Client Data. Zorus is not responsible for any unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to, or failure to store or encrypt, any Client Data or other data that You submit or use in connection with Your use of Zorus Archon or any Services that occurs through any access to or use of an Zorus Archon Account or as a result of Your or any Zorus Archon User’s acts or omissions. You will immediately notify Zorus in writing if You suffer any unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to Zorus Archon, Zorus Software or any Client Data or other data that You submit or use in connection with Your use of Zorus Archon or any Services and you will cooperate in all respects with Zorus to (a) terminate such unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to any of the foregoing, (b) notify all affected Clients, Client Personnel and Customer Personnel, (c) work with law enforcement and other regulatory authorities to investigate, address and remedy the unauthorized access to, alteration of, or the deletion, destruction, or loss of, or damage to any of the foregoing.
6.2 Zorus Archon User and End User Violations. You are responsible for any access or use of Zorus Archon or Services (including Service and Subscription purchases) under each Zorus Archon User’s Zorus Archon Account, including by any Administrator, Service Agents and any third parties that use any Zorus Archon User’s Zorus Archon Account. Zorus Archon Users are responsible for any access or use of Zorus Archon under the Zorus Archon User’s account by any third party. For this Agreement, the acts or omissions of any Zorus Archon User, end user, or third party under a Zorus Archon User’s Zorus Archon Account are considered Your and the Zorus Archon User’s acts or omissions, as applicable, and You and the Zorus Archon User will be jointly and severally liable for such acts or omissions.
(a) General. You will defend, indemnify, and hold harmless the Zorus Parties from and against all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Your or any Zorus Archon User’s or end user’s unauthorized access to or use of Zorus Archon including, without limitation, any use of any Services other than as permitted under this Agreement; (b) sales, use, gross receipts, value added, property, or any other taxes or fees assessed or imposed by any governmental authority on Zorus or any other person with respect to Zorus Archon or measured by any amount payable to Zorus under this Agreement (other than taxes imposed on or measured by Zorus’s net income); or (c) the Client Data or the combination of the Client Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Client Data. If Zorus is obligated to respond to a third party subpoena or other compulsory legal order or process described above, You will also reimburse Zorus for reasonable attorneys’ fees, as well as the time and materials spent by Zorus’s employees and contractors responding to the third party subpoena or other compulsory legal order or process at Zorus’s then-current hourly rates.
(b) Process. Zorus will promptly notify You of any claim subject to Section 6.3(a) of this Agreement, but Zorus’s failure to promptly notify You will only affect Your obligations under Section 6.3(a) of this Agreement to the extent that such failure prejudices Your ability to defend the claim. You may: (i) use counsel of its own choosing (subject to Zorus’s written consent) to defend against any claim; and (ii) settle the claim as You deem appropriate, provided that You obtain Zorus’s prior written consent before entering into any settlement. Zorus may also assume control of the defense and settlement of the claim at any time.
SECTION 7. CONFIDENTIAL INFORMATION.
Each Party reserves any and all right, title and interest (including, without limitation, any Intellectual Property Rights) that it may have in or to any Confidential Information that it may disclose to the other Party under this Agreement. The Recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section 7 will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement; (b) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof (e.g., so as to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the written consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
SECTION 8. PROPRIETARY RIGHTS
8.1 Zorus Archon and Services. As between Zorus and You, Zorus owns all right, title, and interest in and to Zorus Archon and the Services. Except as otherwise specified in Section 2.1, Section 2.2 and Section 3.3 of this Agreement, You do not obtain any rights under this Agreement from Zorus to Zorus Archon or any Services or other Zorus Software, including any related Intellectual Property Rights.
8.2 Feedback. You will provide Zorus with reasonable Feedback and will make Zorus Archon Users available to Zorus on a reasonable basis for this purpose. You will not provide any such Feedback to any third party without Zorus’s prior written consent in each instance. Except for Feedback that contains Your Confidential Information, which Confidential Information included in such Feedback may only be used for Zorus’s internal development purposes to improve or modify Zorus Archon or any Services, You hereby grant to Zorus an exclusive, royalty-free, irrevocable, perpetual worldwide right and license to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute any such Feedback without limitation. Further, Zorus will be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including, without limitation, developing, making, marketing, distributing and selling products and services incorporating such Feedback. Zorus will have no obligation to consider, use, return or preserve any Feedback You provide to Zorus. Except with respect to Your Confidential Information contained in Feedback, any Feedback You provide to Zorus may or may not be treated confidentially by Zorus, and Zorus will have no obligation or liability to You for the use or disclosure of any Feedback. You should not expect any compensation of any kind from Zorus with respect to Feedback. Zorus will exclusively own any improvements or modifications to Zorus Archon or any Services based on or derived from any Feedback, including all Intellectual Property Rights therein or thereto.
8.3 Trademarks. As between Zorus and You, Zorus owns all right, title and interest in and to the Zorus Marks and any goodwill arising out of the use of the Zorus Marks will remain with and belong to Zorus and its licensors. The Zorus Marks may not be copied, imitated or used without the prior written consent of Zorus or the applicable trademark holder.
8.4 Additional Protection of Proprietary Rights. You will not infringe or violate, and will take appropriate steps and precautions for the protection of, Zorus Archon or any Services and related Intellectual Property Rights referred to in Section 8.1. Without limiting the generality of the foregoing, You will not: (a) make Zorus Archon or any Services or Documentation available to any Excluded Individual or any third party in or from countries within the Excluded Territory; (b) remove, obscure or alter any notice of copyright or other Intellectual Property Right appearing in or as part of Zorus Archon; or (c) engage in or permit any Unauthorized Use. You will immediately notify Zorus of any Unauthorized Use that comes to Your attention. In the event of any Unauthorized Use relating to the activities of You or any Zorus Archon Users, You will take all steps reasonably necessary to terminate such Unauthorized Use. You will immediately notify Zorus of any legal proceeding initiated by You in connection with any such Unauthorized Use. Zorus may, at its option and expense, assume control of such proceeding. If Zorus assumes such control, Zorus will have exclusive control over the prosecution and settlement of the proceeding, and You will provide such assistance related to such proceeding as Zorus may reasonably request. You will assist Zorus in enforcing any settlement or order made in connection with such proceeding.
(a) As between Zorus and You, You retain all right, title and interest in and to any Client Data. Except as provided in this Section 8, Zorus obtains no rights under this Agreement from You to the Client Data, including any related Intellectual Property Rights.
(b) Zorus reserves the right to: (i) disclose Client Data to You, its service providers and where required by applicable law or court order; (ii) disclose Aggregated Data to third parties; and (iii) store Client Data in the United States and other countries.
(c) You hereby grant to Zorus a perpetual, irrevocable, nonexclusive license to collect, use, store, maintain, make Client Data available to third parties as authorized herein.
(i) By using Zorus Archon or any Service, You consent, on behalf of Yourself, Your Clients, all Client Personnel (as applicable) and Customer Personnel (as applicable), to have and all Client Data and Zorus Archon Data (including personal information) transferred to and processed in the United States or any other country in which Zorus operates, where You, Clients, Client Personnel and Customer Personnel may have fewer rights than under local law.
8.6 Communications. By entering into this Agreement, You and Zorus have established a business relationship and Zorus may send electronic communications to You, Zorus Archon Users and other individuals within your organization (e.g., via email or by posting notices to our Services). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) or about new or existing products and services, and are part of Your relationship with Zorus. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein. Any notices, agreements, disclosures or other communications that Zorus to You electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
SECTION 9. LIMITED WARRANTIES AND REMEDIES
9.1 Warranty. Zorus warrants that Zorus Archon and the Services will perform in all material respects with the applicable Documentation when operated in accordance with the applicable Documentation.
9.2 Remedy. Subject to this Section 9.2, Zorus will use commercially reasonable efforts to correct any nonconformance of Zorus Archon or a Service, including re-performing a Service that has failed. If Zorus cannot re-perform the Service that has failed to Your satisfaction, upon Your request made within thirty (30) days of the failure, Zorus will refund to You within thirty (30) days of termination any unused pre-paid fees on a pro rata basis for the Subscription Service that failed.
9.3 DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SITE, ZORUS ARCHON AND ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND YOU HEREBY WAIVE, RELEASE, AND DISCLAIM, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING ZORUS ARCHON OR ANY SERVICE, INCLUDING ANY WARRANTY THAT ZORUS ARCHON OR ANY SERVICE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS OR CLIENT DATA PROVIDED BY YOU OR A THIRD PARTY WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ZORUS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
SECTION 10. LIMITATIONS OF LIABILITY
10.1 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (except with respect to monetary obligations) as a result of any cause or condition beyond such Party’s reasonable control (including, without limitation, any act or failure to act by the other Party). This paragraph will not apply to any payment obligation of either Party.
10.2 Limitation of Liability. IN NO EVENT WILL ANY OF THE ZORUS PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE USE OF OR INABILITY TO USE ZORUS ARCHON, ANY SERVICE, ZORUS SOFTWARE OR THE SITE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, EXCEPT FOR (A) A PARTY’S VIOLATION OF SECTION 4 (PAYMENTS AND TAXES), SECTION 7 (CONFIDENTIAL INFORMATION), OR 8.4 (ADDITIONAL PROTECTION OF PROPRIETARY RIGHTS) OF THIS AGREEMENT, (B) A PARTY’S VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR (C) A PARTY’S OBLIGATIONS TO INDEMNIFY THE OTHER PARTY, IN NO EVENT WILL THE AGGREGATE LIABILITY OF ANY OF THE ZORUS PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE GREATER OF (1) THE COMPENSATION PAID BY YOU, IF ANY, TO ZORUS FOR SUBSCRIPTIONS AND SERVICES FOR THE 90 DAYS PRIOR TO THE DATE OF THE EVENT GIVING RISE TO LIABILITY OR (2) $100.
SECTION 11. MISCELLANEOUS
11.2 Independent Contractors. Each Party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligations or liability upon either Party. Further, neither Party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other Party.
11.3 Reference Program. You will consult with Zorus and work in good faith to agree on quotes and statements about Your experience with Zorus Archon and the Services. Zorus may, at its option, use such quotes and statements in connection with its sales and marketing activities with Your prior consent, which will not be unreasonably withheld or delayed and will be deemed granted if You fail to respond to Zorus’s request for consent within fifteen (15) days from the date of such request. Upon request and upon Your prior consent, which will not be unreasonably withheld or delayed, You will participate in and act as a reference in connection with Zorus sales and marketing activities that may include one or all of the following: press releases, a reasonable number of press, analyst and You calls, and event presentations with case studies after full implementation of product. Such right shall be unlimited in duration, unless otherwise agreed upon.
11.4 No Third Party Beneficiaries. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a Party to this Agreement.
11.5 Assignment. You may not assign this Agreement or any right, interest or benefit under this Agreement without prior written consent of Zorus. Any attempted assignment in violation of the foregoing will be void. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by any permitted assignee.
11.6 Nonwaiver. The failure of either Party to insist upon or enforce performance by the other Party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such Party’s right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
11.7 Dispute Resolution Procedures.
(a) The Parties will attempt to resolve through good faith discussion any dispute that arises under this Agreement. Any such dispute may at any time, at the election of either Party, be referred to a senior executive of each Party for discussion and possible resolution. If the senior executives are unable to resolve the dispute within sixty (60) days after delivery of written notice of the dispute, then either Party may, by notice to the other Party, demand mediation under the mediation rules of American Arbitration Association (“AAA”) in New York, NY. The Parties give up their right to litigate their disputes and may not proceed to arbitration without first attempting mediation, except that the Parties are NOT required to arbitrate any dispute in which either Party seeks equitable and other relief from the alleged unlawful use any Intellectual Property Rights by the other Party. Whether the dispute is heard in arbitration or in court, the Parties will not commence against the other a class action, class arbitration or other representative action or proceeding.
(b) If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim shall be resolved by arbitration in accordance with the rules of AAA before a single arbitrator in New York, NY. The language of all proceedings and filings shall be English. The arbitrator shall render a written opinion including findings of fact and law and the award and/or determination of the arbitrator shall be binding upon the Parties, and their respective administrators and assigns, and shall not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The expenses of the arbitration shall be shared equally by the Parties unless the arbitration determines that the expenses shall be otherwise assessed and the prevailing Party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the Parties that, barring extraordinary circumstances, arbitration proceedings shall be concluded within ninety (90) days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the Parties. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange shall be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
(c) IP Disputes and claims for injunctive relief are not subject to the above provisions concerning informal negotiations or binding arbitration.
11.8 Severability. If any provision of this Agreement is deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions.
11.9 Applicable Law. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Delaware, U.S.A., without reference to its choice of law principles to the contrary. The 1980 UN Convention on Contracts for the International Sale of Goods or its successor will not apply to this Agreement. Subject to Section 11.7, You hereby consent to the jurisdiction and venue of the state and federal courts located in the State of Delaware, U.S.A. with respect to any claim arising under or by reason of this Agreement.
11.10 Non-Disparagement. Neither party will knowingly disparage, criticize, or otherwise make any derogatory statements regarding the other party, including, but not limited to, in reviews or social media, and in the parties’ respective official statements, will not and will instruct their affiliates not to, knowingly disparage, criticize, or otherwise make derogatory statements regarding the other party.
11.11 Entire Agreement. This Agreement, together with all applicable amendments, addenda and any Order, Service Terms, policies or guidelines incorporated by reference in this Agreement, including the Policies on the Site as may be amended from time to time, constitutes the entire agreement, and supersedes any and all prior agreements, between Zorus and You with respect to the Services. If the terms of this Agreement are inconsistent with the terms contained in any Order, Service Terms policies or guidelines incorporated by reference in this Agreement, including the Policies on the Site, the terms contained in this Agreement will control
“Administrator” means the individual designated by You as the administrator of Your activities under this Agreement, whether as an MSP or Customer User and as having authority to invite Service Agents.
“Confidential Information” means any information that is proprietary or confidential to the Discloser or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information may be of a technical, business or other nature (including, but not limited to, information which relates to the Discloser’s technology, research, development, products, services, pricing of products and services, Your, employees, contractors, marketing plans, finances, contracts, legal affairs, or business affairs). However, Confidential Information does not include any information that: (a) was known to the Recipient prior to receiving the same from the Discloser in connection with this Agreement; (b) is independently developed by the Recipient; (c) is acquired by the Recipient from another source including any end user of Zorus Archon without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the Recipient.
“Client” means any client of an MSP.
“Client Data” means any content, libraries, documents, folders, files, usernames, passwords, directories, account information or other data, materials or information pertaining to any Client or any Client Personnel generated, input into or collected through the use of Zorus Archon or any Service.
“Client Personnel” means any employee, contractor or agent of a Client.
“Customer Agent” means Customer User’s employees, independent contractors, agents and consultants who are authorized or otherwise designated, invited or permitted by the Administrator to access and use Zorus Archon and Services to perform services for Customer User or Customer Personnel. Customer Agent excludes any Excluded Individuals.
“Customer Personnel” means any employee, contractor or agent of Customer User.
“Discloser” means a Party that discloses any of its Confidential Information to the other Party.
“Documentation” means the online documentation, policies, FAQs, security procedures, or other reference materials or documentation relating to Zorus Archon or any Services furnished or made available by Zorus to You under this Agreement, provided that documentation shall not include any marketing materials.
“Excluded Individual” means any person, firm or entity that is, during the Term, (a) a national or resident of any Excluded Territory; (b) on the United States Treasury Department’s list of Specifically Designated Nationals, (b) the United States Department of Commerce’s Denied Persons List or Entity List, or (c) on any other United States export control list.
“Excluded Territory” means Iran, Cuba, North Korea, the Region of Crimea, Sudan and Syria, and any other country that is subject to United States embargo or other similar United States export restrictions.
“Feedback” means information and feedback (including, without limitation, questions, comments, suggestions, or the like) regarding the performance, features, functionality and Your overall experience using Zorus Archon or any Service.
“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).
“IP Dispute” means any dispute, cause of action, claim, or controversy relating to Your or Zorus’s Intellectual Property Rights.
“Managed Services” means the delivery of network, application, system and other services delivered by You to Clients and Customer Users.
“MSP Agent” means MSP’s employees, independent contractors, agents and consultants who are authorized or otherwise designated, invited or permitted by the Administrator to access and use Zorus Archon and Services to perform services for Clients. MSP Agent excludes any Excluded Individuals.
“Order” means any electronic or hard copy ordering or purchase screen or document between Zorus and You referencing this Agreement.
“Recipient” means a Party that receives any Confidential Information of the other Party.
“Services” mean individually and collectively, as the context requires, the Subscription Services, or other services Zorus may offer from time to time.
“Service Agent” means an MSP Agent, a Customer Agent or both, as the context requires.
“Service Terms” means any additional terms specific to a Service that are presented to you, including, without limitation, renewal terms, payment terms and other legal terms and conditions or use restrictions.
“Site” means www.Zorus.com/, and any successor or related web site designated by Zorus.
“Standard Support” means the standard support that You will receive from Zorus as a result of having signed up for an Zorus Archon Account.
“Subscription” means a subscription to certain Software, services, or software as a service solutions that continues for the duration of the Subscription Period, during which Subscription Period MSP or Customer User may access and use any Subscription Services to provide Managed Services to Clients and Client Personnel or for Customer’s internal business purposes (including to provide Managed Services to Customer Personnel).
“Subscription Services” means any Software, service, or software as a service solution provided made available by Zorus through Zorus Archon that provides an automated one-time service and requires a Subscription in order to access and use the Software, service, or software as a service solution and for which You are required to pay a Subscription to access and use such service during the Subscription Period. Subscription Services include Standard Support.
“Term” has the definition in Section 5.1.
“Third Party Services” means software or services acquired or licensed by Zorus from a third party that is included in Zorus Archon or Services or otherwise made available to You or Your Zorus Archon Users.
“Unauthorized Use” means any use, reproduction, modification, distribution, disposition, possession, examination, inspection, viewing, disclosure or other activity involving Zorus Archon, Services, Zorus Software, Documentation or Confidential Information of Zorus that is not expressly authorized under the Agreement or otherwise in writing by Zorus.
“Workgroup” means a group of Clients, Client Personnel or Customer Personnel created or managed by Zorus Archon Users to whom Managed Services will be provided.
“Zorus Archon Account” means an electronic account permitting an Administrator or Service Agent to access and use Zorus Archon or any Services.
“Zorus Archon Data” means any content, information or other data or materials that are not Client Data, together with all content, libraries, documents, folders, files, usernames, passwords, directories, account information or other data, materials or information pertaining to any You, Zorus Archon Users or Customer Personnel, generated or collected through Your or any Zorus Archon Users’ access to or use of Zorus Archon or any Service.
“Zorus Archon Users” means the Administrator and Service Agents but excludes Excluded Individuals.
“Zorus Archon” means Zorus’s proprietary security software product.
“Zorus Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Zorus and its affiliates.
“Zorus Parties” means Zorus and its affiliates, independent contractors and service providers, and each of their respective members, directors, officers, employees and agents.
“Zorus Software” means any software made available by Zorus and required for access and use of Zorus Archon or a Service.