Last Update: November 15, 2018
IMPORTANT – READ CAREFULLY. This End User License Agreement (“Agreement”) is a legal contract between you (“Licensee”) and ZPower, LLC, a Delaware limited liability company (“ZPower”), governing the use of ZPower’s software, its website, and any other technology provided by ZPower to Licensee, together with the intellectual property and any algorithms embodied therein or thereon and any updates or other modifications supplied by ZPower for use with such software, and all manuals, help files or documentation (collectively the “Software”).
ZPower may update this Agreement from time to time, and any such update takes effect upon Licensee’s continued use of the Software. The date this Agreement was last revised is identified at the top of the page. Licensee is responsible for ensuring we have an up-to-date active and deliverable email address for you and for periodically visiting this Agreement to check for any changes.
- ZPower grants Licensee, a non-exclusive, non-transferable license to use the Software for Licensee’s evaluation business purposes only. LICENSEE MAY NOT (i) DISCLOSE THE SOFTWARE TO UNRELATED THIRD PARTIES OR SUBCONTRACT, SUBLICENSE OR OTHERWISE ALLOW USE OF THE SOFTWARE BY UNRELATED THIRD PARTIES; OR (ii) USE THE SOFTWARE FOR FEE FOR SERVICES ACTIVITIES OR SERVICE BUREAU ACTIVITIES UNLESS PERMISSION IS GRANTED BY US IN WRITING. Licensee shall be responsible for obtaining all equipment and third party software necessary to use and operate the Software.
- License Fees. Except in instances when this is a pilot program, Licensee agrees to pay the license and maintenance fees as agreed to by Licensee electronically at the time of purchase, or otherwise pursuant to a written agreement between the parties, of the License for the Software. All license and maintenance fees are non-refundable. In the event of a pilot, the License Fee for the agreed upon term of the pilot is zero.
- Licensee shall not: remove or destroy any proprietary rights marks or legends on or in the Software; adapt, translate, modify, enhance, or create derivative works of the Software; assign, distribute, sublicense, rent, lease, sell, post on the Internet, or otherwise transfer the Software in print or through any electronic or other medium; or make copies of the Software other than for archival and backup purposes. Licensee shall have no rights with respect to any Software source code and Licensee agrees not to reverse engineer, disassemble, decompile, or otherwise attempt to derive such source code.
- ZPower is the owner or licensee of all right, title and interest, including all intellectual property rights, in and to the Software. Any improvements made by Licensee to the Software are owed by ZPower, and Licensee hereby grants, and agrees to grant, all improvements to ZPower. No title to the Software is transferred to Licensee.
- Unless otherwise stated in a written Agreement with ZPower, the term of Agreement commences when Licensee installs, uses, or accesses any of the Software and will continue in effect until terminated by Licensee or ZPower as set forth in this Section 5 or as otherwise agreed in writing by ZPower. Except as agreed by ZPower in writing, ZPower may terminate this Agreement at any time without notice and for any reason, including if it ceases to support the Software, which ZPower may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. Upon termination, all rights granted to you under this Agreement will also terminate, Licensee must immediately cease all use, and access, of the Software and delete all copies of the Software in its possession. For certainty, termination will not limit any of ZPower’s rights or remedies at law or in equity.
- Disclaimer of Warranty. THE SOFTWARE IS PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Remedy; Limitation of Liability. IN NO EVENT SHALL ZPOWER OR ITS DISTRIBUTORS BE LIABLE TO LICENSEE FOR INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, FOR LOSS OF ANTICIPATED PROFITS OR BUSINESS, LOSS OF DATA OR SAMPLES, OR FOR INTERRUPTIONS IN BUSINESS, WITH RESPECT TO ANY CLAIM OF ANY KIND RESULTING FROM THE SOFTWARE OR THEIR USE OR MISUSE, WHETHER THE BASIS OF SUCH LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), STATUTORY OR ANY OTHER LEGAL THEORY WHATSOEVER. ZPOWER’S AND ITS DISTRIBUTORS LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE DOLLAR AMOUNT PAID FOR LICENSE OF THE SOFTWARE. THE REMEDIES SET FORTH IN SECTION 4 SHALL BE LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ZPOWER’S WARRANTIES.
- Licensee agrees to indemnify, defend, and hold harmless ZPower and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to your use or misuse of the Software or your breach of this Agreement, including but not limited to the content you submit or make available through the Software.
- Export Regulation. The Software, or its application, may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
- US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- 12.1 Notices. All notices to ZPower shall be in writing and addressed to ZPower at the address set forth on the ZPower website. All communications will be deemed given when hand-delivered; or if mailed, by registered mail with verification of receipt, upon date of mailing; or if by electronic mail or facsimile, when received (with verification of transmission sent promptly to the receiving party along with a hard copy of the communication).
- 12.2 Governing Law and Venue. The Agreement shall be governed exclusively by the laws of the USA and the State of California. Any action brought by either party related to this Agreement shall be initiated and maintained in Los Angeles County, California, or in the U.S. District Court of the Central District of California, Western Division, and the parties expressly submit to the exclusive personal jurisdiction and venue of these courts.
- 12.3 Severability. Any part of this Agreement held to be invalid or unenforceable shall be revised so as to make it valid and enforceable and consistent with the intent of the parties expressed in that provision. All other provisions of this Agreement will remain in full force and effect.
- 12.4 Entire Agreement. These Terms and Conditions constitute the entire understanding of the parties with respect to the subject matter of this Agreement and may be amended only by a writing signed on behalf of both parties. Electronic mail shall not be deemed to constitute a signed writing for purposes of this modification provision. No waiver of any right or remedy will be effective unless given in writing and signed on behalf of the party making such waiver.
- 12.5 Binding Effect. These Terms and Conditions shall be binding on and insure to the benefit of ZPower and Licensee and their respective heirs, successors, or assigns.