This ZUTEC END USER LICENSE AGREEMENT constitutes an agreement between you (“Customer”) and ZUTEC Inc. (Ireland) Ltd., a Public Limited Company with its principal place of business at Adelphi Plaza, Level 3 Block F, Georges Street Upper, Dun Laoghaire, Co. Dublin, A96 T927, Ireland (“Zutec”). Zutec is the owner and operator of the Zutec mobile application, website applications and related online services (the “Online Service”) that provides an on-line document and communication collaboration service for the construction, building maintenance industry and other service industries. Use of the Online Service is subject to the terms and conditions contained in the Zutec End User License Agreement (the "EULA") set forth below. In continuing to access or use the Online Services, Customer agrees to be bound by those terms and conditions within the EULA applicable to its use.
1.CONSENT TO EULA AND TERMS AND CONDITIONS
From time to time, Zutec may ask Customer to review important disclosures or agreements about the Zutec Online Service. By signing the Licensing/Services Contract, the Customer affirms:
Customer should be aware, however, that the use of any Online Service is subject to the terms and conditions of the EULA. Please carefully review the following terms and conditions.
2.LICENSE AND TERMS OF USAGE
a.Online Service and Mobile Applications. For the purposes of this Agreement, the term Customer refers to any users of the Service, whether that user is an individual or a legal entity through its employees, representatives, agents, subcontractors or other designated users. Subject to Customer’s compliance with the terms and conditions of this Agreement, upon registration, Zutec grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right and license to install and use the mobile applications (“Mobile App”) and other elements of the Online Service solely in connection with Customer’s internal business use.
b.Registration and Protection of Credentials. During registration process for the Online Services, either on the Zutec website or by the Mobile App, Customer will provide a valid email address and create a password (“Credentials”). Customer agrees that Zutec may use its Credentials to authenticate Customer on the Online Service. Customer may not share its Credentials with anyone other than as expressly set forth herein. Customer is responsible for maintaining the confidentiality of its Credentials, and, provided that Customer acts negligently or wilfully, Customer will be responsible for all uses of the Online Service using its Credentials, whether or not authorized by Customer. Customer must keep its Zutec account information current and promptly notify Zutec at firstname.lastname@example.org of any unauthorized use of its account or if its email or password has been hacked, used without its consent or stolen or if Customer discovers any other breach of security. Zutec reserves the right to suspend or discontinue all or part of Customer’s access to the Online Service at any time without prior notice for unauthorized use of its Credentials or for violating the User Restrictions set forth in Section 2.c (User Restrictions).
c.User Restrictions Customer agrees not to misuse the Zutec Online Services.
Customer may not
d.Customer License to Zutec. Unless otherwise stated, Zutec is free to use any ideas, concepts, know- how, or techniques contained in any Customer communications to Zutec for any internal business purpose including, but not limited to, developing and marketing products using such information.
a.Uploaded Content. Subject to Zutec User Restrictions and Fair Usage Policy. Customer Representations and Warranties Regarding Content, Customer may upload building plan prints or other documents to be used in connection with the Online Services (“Content”). Customer may upload an unlimited number of .pdf format attachments, such as specifications, schedules, daily reports, cut-sheets, drawings and other similar documents in connection with Projects.
b.Content Customers Create and Share on the Online Services. The Online Services permits Customers to create, modify, copy and share Content, such as annotations to documents. Depending upon Customer or its Users level of administrative permissions for a project, Customer’s Content may be altered or deleted permanently by other Online Service users. Zutec has no responsibility for how Customer shares its Content or how others may alter or delete it, and Customer should consider carefully what Customer chooses to share or make public and what Customer chooses to save or backup.
c.Content Ownership. Zutec does not verify, endorse, or claim ownership of any Content, and account holders retains all right, title, and interest in and to the Content upload or created by itself or its assigned users. Content may be stored and/or backed-up on Zutec’s servers ( and reserve the right to store/or backup on servers of trusted third parties) as necessary for Zutec to provide the Online Service, and in accordance with Zutec’s then-current storage practices.
d.Customer Representations and Warranties Regarding Content. Customer represents, warrants and covenants that (a) it is the owner, licensee, or authorized user of all Content; and (b) it will not upload, record, publish, post, link to, or otherwise transmit or distribute Content that: (i) advocates, promotes, incites, instructs, informs, assists or otherwise encourages violence or any illegal activities; (ii) infringes or violates the copyright, patent, trademark, service mark, trade name, trade secret, or other intellectual property rights of any third party or Zutec, or any rights of publicity or privacy of any party; (iii) promotes, solicits or comprises inappropriate, harassing, abusive, profane, hateful, defamatory, libellous, threatening, obscene, indecent, vulgar, pornographic or otherwise objectionable or unlawful content or activity, including Content that is harmful to minors; (v) contains any viruses, Trojan horses, worms, time bombs, or any other similarly harmful computer code, files, scripts, or agents software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, personal information, or property of another; or (vi) violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising). e. Content and Use Monitoring. Zutec may review Content for compliance with community guidelines but Customer acknowledges that Zutec has no obligation to monitor any information on the Site or the Applications. Zutec does not generally monitor user activity occurring in connection with the Online Service and while Zutec disclaims any responsibility to do so, it reserves the right to access any Content to: (i) perform the Online Services, including but not limited to during an Online Service interruption as necessary to restore the applicable Content or to troubleshoot any issue with the Online Service or to help improve the Online Service; (ii) screen, by mechanical means or otherwise, for objectionable information transmitted or shared by user on individualized portions of the Online Services, (iii) monitor the Content and if in Zutec’s sole discretion, Zutec considers the Content to be objectionable or to breach Customer’s representations and warranties, Zutec may remove Content and/or remove any information personalized by Customer, from Online Services at any time without notice, and (iv) monitor Customer’s usage of the Site and Application to ensure compliance with this Agreement. If Zutec becomes aware of any possible violations by Customer of Sections 2(c) (User Restrictions) or 3(d) (Customer’s Representations and Warranties Regarding Content) or any other provision of this Agreement, Zutec reserves the right to investigate such violations, and Zutec may, at its sole discretion, terminate Customer’s use of the Online Service or change, alter or remove Content, in whole or in part, without prior notice to Customer.
4.OWNERSHIP OF INTELLECTUAL PROPERTY
As between Zutec and Customer, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Content. As between Zutec and Customer, Zutec (or its licensors and suppliers) owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Online Service and the Zutec Technology. The foregoing also includes any and all system performance data and machine learning, including machine learning algorithms, and the results and output of such machine learning. No jointly owned intellectual property is created under or in connection with this Agreement. Customer acknowledges that the Zutec name, the Zutec logo, and the product names associated with the Online Service are trademarks of Zutec or third parties, and no license to such marks is granted herein.
5.DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITIES
a. While Zutec strives to ensure that the Online Services do not alter any part of the Content, it does not guarantee that no alteration will ever occur or that what is displayed in the Application or on its Site will at all times be a complete rendering of all Content. Zutec is not responsible for the accuracy, completeness, appropriateness, attribution or legality of the Content, files, user posts, annotations, mark-ups or any other information Customer may be able to access using the Online Service. Ultimately it is Customer’s responsibility to check that its Content as displayed on the Online Service is an accurate rendering of Customer’s Content as originally uploaded.
b.The online service and the application are provided on an “as is” and “as available” basis, “with all faults” and without warranty of any kind. To the full extent permitted by law, Zutec, its affiliates, contractors, online service providers, employees, agents, licensors, and any other party involved in creating, producing or delivering the online service disclaim all warranties and representations of any kind, express, implied, or statutory, all warranties of merchantability, fitness for a particular purpose, and non-infringement. Zutec shall not be responsible for any harm to customer’s or its users computer system, loss or corruption of data or content, or other harm that results from customer’s or its user access to or use of the site or application. Without limiting the foregoing, Zutec does not warrant or represent that the online service will be continuous, secure, reliable, accessible, uninterrupted or error-free.
c. Zutec is not liable to customer or to any third party for any direct, special, incidental, punitive, cover or consequential damages (including, but not limited to, damages for the inability to use the online service or access content, loss of business, loss of profits, business interruptions, customer’s reliance on corrupted, incomplete or missing content or the like), arising out of the use of, or inability to use, the online service or the application or site and based on any theory of liability including statute, breach of contract, breach of warranty, tort (including negligence), product liability or otherwise, even if Zutec or its representatives have been advised of the possibility of such damages and even if an remedy set forth herein is found to have failed of its essential purpose. Zutec’s total liability to customer for actual damages for any cause whatsoever will be limited to €100 or the actual amounts customer paid for the service, whichever is larger.
d. The limitations on liability in this Section are intended to apply to the warranties and disclaimers above and all other aspects of this Agreement. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, or for the exclusion of implied warranties so the above limitation or exclusion may not apply to Customer and Customer may also have other legal rights in its jurisdiction.
b.Collection and Storage of Customer’s Personal Information. By using the Online Service, Customer agrees and acknowledges that personal information collected about Customer through the Site or the Application or in any way in connection with the Online Service may be transferred across national boundaries for storage or process to any of the countries around the world. This includes the location or the universally unique identifier of any Device Customer uses to access the Application and their contact information. Unless otherwise stated in a Customers Contract.
Zutec respects the intellectual property rights of others and expects its users to do the same. In accordance with the European Union Copyright Directive, (Article 13), Zutec will respond expeditiously to claims of copyright infringement committed using the Site and/or the Application if such claims are reported to Zutec’s Designated Copyright Agent identified in the sample notice below. Article 13 Notice of Alleged Infringement (“Notice”) Identify the copyrighted work that Customer claims has been infringed, or if multiple copyrighted works are covered by this Notice, Customer may provide a representative list of the copyrighted works that Customer claim have been infringed.
All provisions of this Agreement, other than Section 2 survive any termination or suspension of this Agreement.
By accessing and using the Online Service, Customer and Zutec agree that all matters relating to this Agreement and Customer’s access to, or use of, the Online Service shall be governed by and construed in accordance with the substantive laws in force in the Republic of Ireland without regard for its conflicts of law principles. All claims arising out of or relating to the terms of this Agreement or the Online Service will be dealt with through Arbitration. Where no agreement is met with the parties through Arbitration it must be litigated exclusively in the Irish Courts.
If Customer chooses to access the Online Service from a location outside of the European Union (EU), Customer’s does so at its own initiative, and is solely responsible for compliance with local laws and all liability therefore. The export and re-export of the Application software may be controlled by the EU Trade Rules.
Notwithstanding any other provision of this Agreement, Zutec may change, suspend, add, or remove terms and conditions of this Agreement, or cease, change, suspend, add to, or remove the Online Service, Application or Site, or any portion of the Online Service, Application, or Site, at any time. If any future changes are unacceptable to Customer, it should discontinue using the Online Service, Application or Site. Customer’s continued use of the Online Service, Application, or Site following the posting of notice of any such changes to a Zutec web site will indicate Customer’s acceptance of the then current Agreement, and of any such changes. In no event will Zutec have any liability as a result of making these changes.
The following additional terms shall apply to any users paying for Zutec’s online services. In the event of a conflict between the terms below and the end user license agreement, the terms of the below service subscription agreement shall prevail. Zutec service subscription agreement and constitutes an agreement between you (“customer”) and Zutec INC.(Ireland) limited, a Limited Company with its principal place of business at Adelphi Plaza, Level 3 Block F, Georges Street Upper, Dun Laoghaire, Co. Dublin, A96 T927, Ireland (“Zutec”). Zutec is the owner and operator of Zutec mobile applications, website and related Online Services (the “Online Service”) that provides an online document and communication collaboration service for the construction, building maintenance industry and other service industries. This Agreement governs Customer’s use of the Zutec Online Service.
1.1 “Agreement” means, collectively, this Zutec Online Service Agreement, and the attached exhibits hereto, as well as any Order Form/Pricing Proposals executed to by the parties, each of which are incorporated herein by this reference.
1.2 “Customer Data” means any Customer-specific data, materials, or content provided or submitted to or through the Zutec Online Service.
1.3 “Confidential Information” means this Agreement, the Zutec technology, Zutec pricing information, Customer Data and any other information disclosed by one party (“Discloser”) to the other (“Recipient”) hereunder.
1.4 “Content” means building plan prints, photos, images, cut sheets, other documents uploaded by Users or any annotations, notes or other written or electronic additions to those documents.
1.5 “Documentation” means the help document Zutec provides for use with the Zutec Online Services.
1.6 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, service mark, trade name, domain name right, trade secret, know-how or other intellectual property rights, and all similar or equivalent rights or forms of protection, in any part of the world.
1.7 “Order Form/Pricing Proposal” means a document that details the Service(s) to be provided by Zutec, the associated fees, and other related details. If multiple Order Forms/Pricing proposals will apply to this Agreement, they will each have their own unique identifier. All duly executed Order Form(s)/Pricing Proposal(s) are deemed incorporated herein by this reference. Each Order Form/Pricing Proposal is intended to define a separate contract particular to that order, incorporating by reference this Agreement. An Order Form/Pricing Proposal may also contain other terms or conditions, mutually agreed upon in writing by Zutec and Customer, which apply specifically to that particular order/contract. Customer agrees that each Order Form/Pricing Proposal will be signed by a representative having the authority to bind Customer, and that Zutec may presume that such representative has such authority.
1.8 “Zutec Online Service(s)” or “Service(s)” means the license-based service provided by Zutec pursuant to an Order Form/Pricing Proposal that provides additional functions and services as compared to the Zutec free trial service.
1.9 “Professional Services” means the implementation, configuration, and/or training, services to be provided by Zutec to Customer pursuant to an Order Form/Pricing Proposal.
1.10 “Service Term” means the Order Form/Pricing Proposal-specified period during which the Zutec Online Service is available.
1.11 “Zutec Technology” means Zutec’s proprietary software and other technology provided via the Zutec Online Service, including any enhancements, modifications, and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto.
1.12 “Force Majeure” means events that are beyond Zutec’s control.
1.13 “User” means Customer or its affiliates’ employees, contractors, or agents whom Customer expressly authorizes to use the Zutec Online Service.
2.PROVISION OF ZUTEC ONLINE SERVICE
2.1 END USER LICENSE AGREEMENT. All terms of the end user license agreement (“EULA”), currently available at https://www.zutec.com are explicitly incorporated here by reference. Any conflict between this Zutec Online Service Agreement and the terms of the End User License Agreement, any Order Form/Pricing proposal, or other exhibit hereto, will be resolved in the following order: (a) any Order Form/Pricing Proposal; (b) this Online Service Agreement (c) the End User License Agreement.
2.2 PROVISION OF ONLINE SERVICE; ACCESS RIGHT. Subject to the terms and conditions of this Agreement, during the applicable Service Term, Zutec will provide Customer and its Users with the Zutec Online Services, purchased on a license basis, described on one or more Order Form/Pricing Proposal(s). Customer will designate User accounts for each of its users and subject to law or other regulation, it may change or delete Zutec access service credentials for any of its Users. Zutec may update the content, functionality, and user interface of the Zutec Online Service from time to time. Although Zutec may substitute substantially equivalent features, Zutec will not materially reduce the function of the Zutec Online Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Zutec grants to Customer a non-exclusive, non-transferrable, non-sublicenseable, revocable right and license to install and use the mobile applications (“Mobile Apps”), Zutec website and other elements of the Zutec Online Service solely in connection with Customer’s internal business use. Zutec reserves all rights not expressly granted hereunder.
2.3 SERVICE LEVEL AGREEMENT. Zutec shall maintain commercially reasonable administrative, physical and technical safeguards designed for the protection, confidentiality and integrity of Customer Data. Zutec will (a) make the Zutec Online Services and Content available to Customer pursuant to this Agreement and the applicable Order Forms/Pricing Proposals, (b) provide Zutec standard support for the Zutec Online Services to Customer at no additional charge, and (c) use commercially reasonable efforts to make the Zutec Online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Zutec shall give at least 24 hours electronic notice and which Zutec shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Greenwich Mean Time) (ii) emergency updates; and (ii) any unavailability caused by circumstances beyond Zutec’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Zutec employees), Internet service provider failure or delay, hosting service failure, non-Zutec application failure or denial of service attack.
2.4 CUSTOMER RESPONSIBILITIES. Customer will abide by all applicable laws, treaties, ordinances and regulations regarding use of the Zutec Online Services. Customer will be responsible and liable for the acts and omissions of all Users in connection with this Agreement, as well as any and all access to and use of the Service by any User or any other person logging in under a User ID registered under Customer’s account or providing and/or receiving Customer Data or other information through the Service. Customer acknowledges that Customer’s access information, including User IDs and passwords of its Users, will be Customer’s “key” to the Zutec Online Service; accordingly, Customer will be responsible for maintaining the confidentiality of such access information. Customer shall be responsible for the accuracy, quality and legality of the Content and the means by which Customer acquired it. Customer’s responsibilities regarding Registration and Protection of Credentials, User Restrictions and Content are set forth in the End User License Agreement, explicitly incorporated by reference.
2.5 LOAD TESTING AND USE OF ROBOTS. Customers may not, without the prior written consent of Zutec’s security officer, (i) conduct security, integrity, penetration, vulnerability or similar testing on the Zutec, (ii) use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as robots) in conjunction with the Zutec Technology, or (iii) attempt to access the data of another Zutec customer (whether or not for test purposes).
2.6 PROFESSIONAL SERVICES. Zutec will perform the work in the Order Form/Pricing Proposal and use commercially reasonable efforts to meet the schedules. Customer will provide Zutec with reasonable support and access to its facilities, systems, materials and personnel needed to perform the Zutec Online Services and will be responsible for any negative impact to the services schedule to the extent Customer fails to do so.
3.INTELLECTUAL PROPERTY OWNERSHIP
3.1 As between Zutec and Customer, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to the Content and any work based on or derived from the Content. As between Zutec and Customer, Zutec (or its licensors and suppliers) owns and will continue to own all right, title and interest, including all related Intellectual Property Rights, in and to the Zutec Online Service and the Zutec Technology. Notwithstanding any term of the Agreement, Customer will not assert any direct claim against Zutec, nor any indirect claim against any Zutec customer, licensee or subscriber arising from or relating to any technology, method, configuration, know-how or other similar development for the integration of the Zutec’s API to any third party products or services. No jointly owned intellectual property is created under or in connection with this Agreement. Customer acknowledges that the Zutec name, the Zutec logo, and the product names associated with the Service are trademarks of Zutec or third parties, and no license to such marks is granted herein. Zutec is free to use any ideas, concepts, know-how, or techniques contained in Customer communications for any purpose including, but not limited to, developing and marketing products using such information, provided that Zutec will not disclose Customer Confidential Information.
4.BILLING AND PAYMENT
4.1 Licenses/Hosting. Unless otherwise provided in the applicable Order Form/Pricing proposal, (a) Zutec Online Services and Content are purchased as Licenses/Hosting’s, (b) additional User Licensing may be added during a License/Hosting term at the same pricing as the underlying Licensing/Hosting pricing, prorated for the portion of that Licensing/Hosting term remaining at the time the Licensing/Hosting are added, and (c) any added subscriptions will terminate on the same date as the underlying Licensing/Hosting.
4.2 User Limits. Zutec Online Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms/Pricing Proposals corresponding to product levels. Unless otherwise specified, (a) a quantity in an Order Form/Pricing Proposals refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Zutec Online Service or Content.
4.3 Fees. Customer will pay all fees specified in Order Forms/Pricing Proposals. Except as otherwise specified herein or in an Order Form, (i) fees are based on number of User licences and product level, (ii) payment obligations are noncancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant licence/hosting term.
4.4 Invoicing and Payment. Customer will provide Zutec with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Zutec. If Customer provides credit card information to Zutec, Customer authorize Zutec to charge such credit card for all purchased Zutec Online Services listed in the Order Form/Pricing Proposal for Licencing/Hosting term and any renewal Licencing/Hosting term(s) as set forth in Section 5.2 (Term of Purchased Licencing/Hosting ). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form/Pricing Proposal. If the Order Form/Pricing Proposal specifies that payment will be by a method other than a credit card, Zutec will invoice Customer in advance and otherwise in accordance with the relevant Order Form/Pricing Proposal. Unless otherwise stated in the Order Form/Pricing proposal, invoiced charges are due net thirty (30) days from the invoice date. Customers are responsible for providing complete and accurate billing and contact information to Zutec and notifying Zutec of any changes to such information.
4.5 Overdue Charges. If any invoiced amount is not received by Zutec by the due date, then without limiting Zutec rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Zutec may condition future Licencing/Hosting renewals and Order Forms/Pricing Proposals on payment terms shorter than those specified in Section 4.4 (Invoicing and Payment).
4.6 Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Zutec Online Services is 30 or more days overdue (or seven (7) or more days overdue in the case of amounts Customer have authorized Zutec to charge to Customer’s credit card), Zutec may, without limiting Zutec’s other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Zutec Online Services to Customer until such amounts are paid in full. Zutec will provide at least five (5) business days advance notice prior to suspending a Customer account.
4.7 Payment Disputes. Zutec will not exercise Zutec’s rights under Section 4.5 or 4.6 above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently with Zutec to resolve the dispute.
4.8 Value Added Tax (“VAT”). Zutec Licencing/Hosting fees will include VAT added at point of Invoice. Order Forms/Pricing Proposals are quoted at net value. It is the customers responsibility to ensure this is relayed to the customers’ accounts payable.
4.9 Future Functionality. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Zutec regarding future functionality or features.
5.1 Term of Agreement. This Agreement commences on the date Customer first accept it and, unless otherwise terminated, continues until all subscriptions hereunder have expired or have been terminated.
5.2 Term of Purchased Licence(s)/Hosting(s). The term of each Licence/Hosting shall be as specified in the applicable Order Form/Pricing Proposal. Except as otherwise specified in an Order Form/Pricing Proposal, Licence(s)/Hosting(s) will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), at Zutec's and Customer’s then agreed rates, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term.
5.3 Termination. A party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, Customer may terminate this Zutec Online Agreement upon thirty (30) days written notice; however, it will nonetheless continue in effect with respect each ongoing Licence/Hosting until the same has expired.
5.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 5.3 (Termination), Zutec will refund Customer any prepaid fees covering the remainder of the term of all Order Forms/Pricing Proposals after the effective date of termination. If this Agreement is terminated by Zutec in accordance with Section 5.3, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms/Pricing proposals. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to Zutec for the period prior to the effective date of termination.
5.5 Customer’s Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Zutec will make the Customer’s Content available for purchase, on downloaded USB key or any other required device, to Customer. After that 30-day period, Zutec will have no obligation to maintain or provide Customer’s Data, and will thereafter delete or destroy all copies of Customer’s Data in Zutec systems or otherwise in Zutec possession or control as provided in the Documentation, unless legally prohibited.
5.6 Effect of Termination; Survival. Upon expiration or termination of this Agreement: (a) all licenses/hosting’s granted by Zutec under this Agreement and Zutec’s obligation to provide (and Customer’s right to access and use) the Service and Zutec Technology, will terminate; (b) Customer Data will be returned or deleted pursuant to Section 5.5; and (d) Sections 3 and 6 through 10 will survive.
6.REPRESENTATIONS AND WARRANTIES
6.1 By Zutec. (a) Conformity with Specifications. Zutec represents and warrants to Customer that the applicable Zutec Online Service platform, when used in accordance with the instructions in the Documentation and this Agreement, will conform to the specifications in the applicable Documentation. Zutec’s entire liability and Customer’s sole and exclusive remedy for such breach will be, at Zutec’s election, to either: (A) re-perform, modify, or replace the Service so that it so conforms to such warranty; or (B) provide a refund of the fees paid for the affected Service, and solely as to the refunded Service, this Agreement, and Customer’s right to access such Service will immediately terminate. Zutec makes no warranty with respect to, errors caused by or relating to: (1) use of the Service in a manner inconsistent with the Documentation or this Agreement; or (2) third party hardware or software misuse, modification, or malfunction. (b) Noninfringement. Zutec represents and warrants to Customer that the Service, when used in accordance with the instructions in the Documentation and this Agreement, does not and will not infringe or misappropriate any third party’s Intellectual Property Rights. As Zutec’s sole and exclusive obligation and Customer’s sole and exclusive remedy for breach of the foregoing warranty, Zutec will indemnify Customer as set forth in Section 7.1 ‘Indemnification – by Zutec’.
6.2 By Customer. Customer represents and warrants to Zutec that (i) Customer has the right to provide or submit the Content through the Zutec Online Services, and (ii) the Content does not and will not violate the terms or conditions of this Agreement, applicable law, or infringe or misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party. As Customer’s sole and exclusive obligation and Zutec’s sole and exclusive remedy for breach of the foregoing warranty, Customer will indemnify Zutec as set forth in Section 6.
6.3 Warranty disclaimers. Except as warranted herein, all representations and warranties, express, implied, or statutory, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement of third party rights, are disclaimed. Zutec’s premium services may be subject to, and Zutec is not responsible for, limitations, risks, and other problems inherent in electronic communications, and Zutec does not warrant that use of the Zutec online services is risk-free. Zutec does not provide representations, warranties, or assurances against interception or access and Zutec is not responsible for any unauthorized acts resulting in loss of or damage to customer data or other property in connection with customer’s use of the Zutec online services. Zutec may, in performing its obligations pursuant to this agreement, be dependent upon or use data, material, and other information furnished by customer without any independent investigation or verification thereof, and Zutec may assume that such information is accurate, complete, and legally sufficient.
7.1 By Zutec. Zutec will defend Customer from and against any and all third party lawsuits to the extent: (a) alleging that the Zutec Online Service infringes or misappropriates any Intellectual Property Rights; (b) arising out of or relating to a breach of this Agreement by Zutec, and will indemnify and hold Customer harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim. Zutec will have no indemnification obligation for infringement or misappropriation claims to the extent arising from: (i) Customer’s or any User’s use of the Zutec Online Services other than as permitted under this Agreement; (ii) the combination of the Service with any Customer Data or any Customer or third party products, services, hardware, data, content, or business process(s); or (iii) from the modification of the Service or any Zutec technology by any party other than Zutec or Zutec’s agents. If the Zutec Online Services provided under this Agreement become the subject of any claim, suit or proceeding for infringement of any intellectual property rights, or if it is held or otherwise determined to infringe any intellectual property rights, Zutec will (1) secure for Customer the right to continue using the Zutec Online Services; or (2) replace or modify the Zutec Online Services to make it non-infringing without degrading its performance or utility; or (3) if Zutec using its best efforts is unable to accomplish item (1) or (2) above, either Customer or Zutec may terminate this Agreement and Zutec will refund to Customer the pro-rata portion of the unused licence/hosting Fees related to the infringing intellectual property. The foregoing is Zutec’s sole and exclusive obligation for the third party claims described in this section 7.1.
7.2 By Customer. Customer will defend Zutec from and against any and all third party lawsuits to the extent: (a) alleging that the Content or its duplication, enhancement, publication or use infringes or misappropriates any Intellectual Property Rights, breaches any agreement between Customer and a third-party, or violates any other common law, statutory right or published policy, such as privacy; (b) arising out of or relating to a breach of this Agreement by Customer or any Users; or (c) it arises from a claim of violation by Customer or Users of any law, ordinance or regulation or contractual obligation to a third-party, and Customer will indemnify and hold Zutec harmless from any and all damages, losses, liabilities, costs, expenses, and other amounts to the extent awarded by a court of final jurisdiction relating to such claim, or agreed to in a monetary settlement of such claim. Customer acknowledges that its obligation to indemnify and hold Zutec harmless extends to all users of customer’s Zutec online services accounts, not just its own employees and agents.
7.3 Indemnity Process. Each party’s indemnification obligations are conditioned on the indemnified party: (a) promptly giving written notice of the claim to the indemnifying party; (b) giving the indemnifying party sole control of the defence and settlement of the claim (provided that the indemnifying party may not settle any claim unless the settlement unconditionally releases the indemnified party of all liability for the claim); (c) providing to the indemnifying party all available information and assistance in connection with the claim, at the indemnifying party’s request and expense; and (d) not compromising or settling such claim. The indemnified party may participate in the defence of the claim, at the indemnified party’s sole expense (not subject to reimbursement).
8.LIMITATION OF LIABILITY
Recipient Except for a breach of Section 3 ‘Intellectual Property’ or section 9 ‘Confidentiality’ each party’s indemnification obligations, or for direct damages to the extend arising our of a party’s intentional misconduct, or fraud, neither Zutec nor its suppliers or licensers, nor customers aggregate liability will exceed the sums actually paid by and/or due from customer under the applicable order forms. Except for a breach or section 3 ‘Intellectual property’ or section 9 ‘Confidentiality’ or each party’s indemnification obligations, neither Zutec nor its suppliers or licensers, nor customer, will be liable for any indirect, punitive, special, exemplary, incidental, consequential or similar damages (including loss of data, revenue, profits, or use) arising out of or relating to this agreement, including the use or inability to use the service, any interruption, inaccuracy or error in the content, even if Zutec has been previously advised of this possibility of such damages.
Recipient may use Discloser’s Confidential Information solely to perform Recipient’s obligations or exercise its rights hereunder. Recipient may not knowingly disclose, or permit to be disclosed, Discloser’s Confidential Information to any third party without Discloser’s prior written consent, except that Recipient may disclose Discloser’s Confidential Information solely to Recipient’s employees, officers, directors, consultants, contractors, agents or advisors (“Representatives”) who have a need to know for purposes of the Recipient’s exercise of its rights or performance of its obligations under this Agreement and who are bound in writing to keep such information confidential pursuant to confidentiality agreements consistent with this Agreement. Recipient acknowledges and agrees that it is responsible and liable for any breach by its Representatives of this section of this Agreement. Recipient agrees to exercise due care in protecting Discloser’s Confidential Information from unauthorized use and disclosure and will not use less than a reasonable degree of care. The foregoing will not apply to any information that: (i) was or becomes generally known by the public through no fault of Recipient; (ii) was properly known to Recipient, without restriction, prior to disclosure by Discloser; (iii) was properly, and with authority, disclosed by a third party to Recipient, without restriction ; (iv) Recipient independently develops without use of Discloser’s Confidential Information; or (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement. If the Recipient or any of its Representatives is required pursuant to a judicial or legislative order or proceeding to disclose any Confidential Information of Discloser, then, to the extent, permitted by applicable law, the Recipient shall promptly, and prior to such disclosure, notify the Discloser of such requirement so that the Discloser can see a protective order or other remedy, notice of the intended disclosure and an opportunity to respond or object thereto. No such compelled disclosure by the Recipient will otherwise affect the Recipient's obligations hereunder with respect to the Confidential Information so disclosed. Upon Discloser’s written request at any time and subject to any contrary obligations under this Agreement or applicable law, Recipient shall at Discloser’s direction promptly return or destroy and erase from all systems it directly or indirectly uses or controls (a) all originals and copies of all documents, materials and other embodiments and expressions in any form or medium that contain, reflect, incorporate or are based on Discloser’s Confidential Information, in whole or in part, except to the extent required by applicable law or in backup systems until deleted in the ordinary course, provided that all such information and materials will remain subject to the confidentiality and security requirements set forth in this Agreement, or (b) solely such specific Confidential Information as Discloser may request, and provide, upon request, a written statement to Discloser certifying that it has complied with the requirements of this section.
10.1 Publicity. During any applicable Service Term, Customer grants Zutec the right to identify Customer as a customer of the applicable Zutec Online Services, including using the Customer’s logo, solely in marketing materials and on Zutec’s website. Neither party shall issue any press release regarding this Agreement without the prior written consent of the other party.
10.2 Notices. All notices, requests, demands, waivers, consents and other communications hereunder will be in writing and will be served by personal service, certified or registered mail or confirmed electronic or facsimile transmission at the address of the receiving party set forth below (or at such different address as may be designated by such party by written notice to the other party), and shall be deemed complete upon receipt. If to Zutec, Zutec Inc.(Ireland) Limited. A Limited Company with its principal place of business at Adelphi Plaza, Level 3 Block F, Georges Street Upper, Dun Laoghaire, Co. Dublin, A96 T927, Ireland Attn: Chief Financial Officer, If to Customer: [company name] [address] Attn: [name/title] [email]
10.3 Assignment. Neither party may assign this Agreement, by operation of law or otherwise, without the other party’s prior written approval; provided, however, that a party may assign its rights and obligations under this Agreement, without the approval of the other party, to: (a) an entity that acquires all or substantially all of the assets of the assigning party; or (b) any subsidiary or Affiliate of the assigning party or successor in a merger or acquisition (whether by operation of law or otherwise) involving the assigning party’; provided, further that for any permitted assignment by a party, the assigning party will provide the non-assigning party with written notice of such assignment and that the party receiving the assignment assumes all of the performance obligations and liabilities of the assigning party. Any attempted assignment in violation of the foregoing will be null and void.
10.4 Governing Law; Venue. This Agreement will be governed by Irish law, without regard to conflicts of law provisions. Neither the U.N. Convention of Contracts for the International Sale of Goods nor UCITA will apply. Any dispute arising out of or relating to this Agreement shall be brought in (Dublin) Ireland, and as appropriate, either in the Supreme Court of Ireland or in the European Courts of Justice. Each party hereby consents to the exclusive jurisdiction of such courts.
10.5 Remedies. Except as provided in Sections 6 and 7, the parties’ rights and remedies hereunder are cumulative. Customer acknowledges that the Zutec Online Service and Zutec’s technology contain Zutec’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to Zutec for which monetary damages would be inadequate, and that seeking injunctive relief is an appropriate remedy.
10.6 Independent Contractors. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Service. Neither party shall have any authority to contract for or bind the other party in any manner whatsoever.
10.7 Export Compliance. Customer acknowledges that the Zutec Online Services may be subject to foreign export and import restrictions. Customer will not and will not allow any export or re-export of any part of the Zutec Online Services, or any direct product thereof: (a) to any country to which such export or re-export is restricted or prohibited, or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (b) otherwise in violation of any export or import restrictions, laws or regulations. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Zutec Online Service is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the EU.
10.8 Waiver; Amendment; Severability. A party’s failure enforce any provision in this Agreement will not constitute a waiver unless in writing. No amendment hereof will be effective unless in writing and signed by both parties. If any provision of this Agreement is unenforceable, it will be changed and interpreted to accomplish the objectives of such provision to the extent legally permissible; remaining provisions will continue in full force and effect. Neither party will be liable for failure to perform due to causes beyond its reasonable control.
10.9 Purchase Orders. This Agreement shall prevail over any inconsistent terms or conditions contained in, or referred to in, Customer's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing. No addition to, variation of, exclusion or attempted exclusion of any term of the Agreement shall be binding on Zutec unless in writing and signed by a duly authorized representative of the Zutec.
10.10 Local Use Decisions. Zutec will not provide Customer with any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations in the jurisdictions in which Customer uses the Application (“Laws”). The parties acknowledge and agree that not all features, functions and capabilities of the Application may be used in all jurisdictions and Customer recognizes that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local law, and in certain jurisdictions consents may need to be obtained from individuals submitting data via the Application as to the intended purpose, storage, distribution, access and use of the data submitted (“Local Use Decisions”). Customer is responsible for Local Use Decisions and Zutec disclaims all liability for Local Use Decisions.
10.11 Entire Agreement. This Agreement forms the entire agreement between Customer and Zutec regarding the subject matter hereof. It supersedes all prior or contemporaneous negotiations or agreements between the parties regarding its subject matter. Any pre-printed terms on any Customer purchase order will have no effect on the terms of this Agreement and are hereby rejected. Headings are for reference purposes. “Including” means “including but not limited to.”
10.12 Force Majeure. If either party is affected by Force Majeure it shall promptly notify the other party of the nature and extent of the circumstances in question. Notwithstanding any other provision of this Agreement, neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, for any delay in performance or the non-performance of any of its obligations under this Agreement, to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation shall be extended accordingly.
10.13 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Last Modified May 2019