THIS AGREEMENT (the “Agreement”) is entered into between Zywave, Inc.(“Zywave”) and the customer listed in the signature block of their Product schedule (“Customer”), as of the Effective Date of the Product Schedule.
1. AGREEMENT STRUCTURE AND DEFINITIONS.
1.1 Agreement Structure and Order of Precedence. This Agreement states the terms and conditions under which Zywave will provide Services to Customer and Customer will obtain Services provided by Zywave, including under any applicable Schedule. The specific Services to be provided are identified on one or more Schedules signed by the parties. While this Agreement is intended to cover the provision of the Services generally, additional terms and conditions related to specific Services may be set out in individual Schedules, which terms and conditions shall govern the relationship of the parties only with respect to those specific Services covered by the particular Schedule. To the extent any terms and conditions of this Agreement conflict with the terms and conditions of a Schedule, the terms and conditions of this Agreement shall control unless the Schedule expressly states the intent to supersede a specific portion of the Agreement.
“Affiliate” means an entity directly or indirectly, controlled by or under common ownership of Customer whereby “control” means the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares or interests of such entity.
“Audit Form” means the informational worksheet to be completed by Customer.
“Customer Content” means information and data that Customer or Users provide, including, without limitation, information and data that Customer or Users create, install, upload or transfer in or through the Services.
“Effective Date” means, with respect to this Agreement, the date first indicated above and with respect to a Schedule, the date set forth in such Schedule.
“End User Agreement” means the online click-through terms and conditions available for review at https://www.zywave.com/terms2.asp to which each and every User must assent prior to accessing or using any and all Zywave products. Zywave reserves the right to modify the End User Agreement from time to time in its sole discretion.
“Hosted Application” means the particular software product, in object code, identified in the Schedule, including end-user documentation and updates.
“Initial Term,” “Renewal Term” and “Term” have the meaning set forth in section 2.2.
“Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, moral rights, trademarks, service marks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed, registered or recorded.
“Intellectual Property” means technology, inventions, know-how, show-how, designs, formulae, processes, techniques, methodologies, procedures, processes, tools, utilities, techniques, various concepts, ideas, methods, models, templates, content, photographs, audio and video clips, and other works of authorship, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, and any document or other materials embodying any of the foregoing, whether or not any of the same are patentable or copyrightable, and related documentation.
“Personal Information” means any personally identifiable information that relates to an individual, such as (i) an individual’s name, address and telephone number; (ii) an individual’s social security number or similar such number; (iii) the fact that an individual has a relationship with Customer; and (iv) information regarding the account numbers, balances, amounts or holdings or an individual.
“Privacy Laws” means those applicable privacy laws that govern the provision of Services under this Agreement, including the Gramm-Leach-Bliley Act and the Personal Information Protection and Electronic Documents Act (Canada).
“Professional Services” means training, implementation, data conversion, and other consulting services.
“Schedule” means a specific agreement, regardless of its actual name, for the provision of particular Services by Zywave to Customer, executed by the parties specifically referencing this Agreement pursuant to which Customer orders, and Zywave accepts to supply, the particular Service under the terms and conditions of this Agreement.
“Services” means collectively (i) the Professional Services and/or (ii) access to Zywave’s Hosted Application(s) and/or Zywave Materials and associated use rights, all to be provided by Zywave to Customer under a Schedule.
“Third Party Content” means software, data, content or other products which Zywave has obtained rights from one or more third parties for use in conjunction with the provision of Services under this Agreement, the use of which is governed by the terms contained in this Agreement.
“Update” means any update, modification or enhancement of the Services that Zywave makes generally available to its customers without additional charge beyond the applicable fees. Update shall include defect repairs, patches and maintenance releases.
“User” means an individual that has been authorized by Customer, and assigned a unique username-password combination, to access and use the Services or the results or products of the Services.
“Zywave Materials” means literary or other works of authorship (such as content, templates, information, data, text, software, music, sound, photographs, graphics, video messages or other material) that Zywave
2.1 Delivery of Services. Subject to the terms and conditions of this Agreement and timely payment of the applicable fees by Customer, Zywave will provide, during the Term, the Services identified in one or more Schedules signed by the parties.
2.2 Term and Renewal of Services. The initial term of the Services (the “Initial Term”) shall be as set forth in the Schedule, unless earlier terminated as set forth in Section 3. It shall be automatically renewed for successive periods of same duration (each a “Renewal Term”) commencing on the anniversary of the end of the Initial Term; unless either Party notifies the other in writing, on or before ninety (90) days prior to the end of the then existing term, of its intention not to renew the Services. The Initial Term and Renewal Term(s) are collectively referred to as the “Term”. In the event Customer expands its Services under this Agreement, the term for the additional order shall be co-terminus with the then existing Term.
2.3 Customer’s Obligations. Customer represents that it will comply with the use and restrictions applicable to the Services as follows. Additional use and restrictions may apply, as set forth in the applicable Schedule and the End User Agreement.
2.3.1 Use of the Services by Customer is limited to servicing Customer’s clients and prospects. Redistribution, reselling, or providing access to the Services to any third-party (excluding any included Affiliates) or use of the Services for purposes not permitted in this Agreement or a Schedule is strictly prohibited.
2.3.2 Customer shall not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Zywave Materials, in whole or in part, except as expressly permitted in this Agreement or the applicable Schedule or as expressly authorized in a specific area of any Zywave web site or in writing by Zywave and shall not commit or permit any act or omission that would impair Zywave’s Intellectual Property Rights. Zywave Materials may not be reverse engineered or decompiled unless specifically authorized. All Intellectual Property Rights notices must be reproduced and included on copies of the Zywave Materials. Customer shall not use the Services in a service bureau, planning center, time sharing or other similar arrangement whereby any use of the Services is gained by someone other than a User.
2.3.3 Subject to the restrictions set forth in section 2.4 (Acceptable Use Policy), Customer may post on the Zywave Web site any Customer Content owned by Customer (such as Customer’s original statements), Customer Content for which Customer has received express permission from the owner to post, and content in the public domain. Customer assumes all risk and responsibility for determining whether any Customer Content is in the public domain or is permitted to be posted by the owner of the Customer Content.
2.4 Acceptable Use Policy. Customer acknowledges and agrees that Zywave does not monitor or police the content of communications or data of Customer or its Users uploaded in or transmitted through the Services, and that Zywave shall not be responsible for the content of any such communications or transmissions. Customer shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer agrees not to post on the Web site any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains viruses or other contaminating or destructive features; (c) violates the rights of others, such as data which infringes on any Intellectual Property Rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law (including, without limitation, the laws and regulations governing export control, unfair competition, antidiscrimination, or false advertising). Customer further agrees not to use the Web site to solicit users to join or to procure products or services competitive to the Services. Zywave reserves the right to delete, move or edit any Customer Content that it may determine, in its sole discretion, violates this Agreement or is otherwise inappropriate for posting.
2.5 Access to Services. Customer acknowledges that it is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Services, including but not limited to computer and telephony equipment, cabling, software, Internet access and other materials at its facility(ies) necessary to access the Services.
2.6 Passwords. All usernames and passwords provided to Customer by Zywave in connection with the provision of Services shall be kept secret and secure and used only by authorized personnel. Customer shall be responsible for all misuse of usernames and passwords by it and its Users, and Customer shall promptly inform Zywave of any breach of password security or use of or possession of passwords by non-authorized persons. Customer is entirely responsible for any and all activities that occur under Customer’s account. Zywave shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements.
2.7 Availability of Internet-Provided Services. The provision of the Services by Zywave may include the provision of access to certain software and websites via the Internet. Zywave shall provide any such services using a co-location facility which: (a)uses a web server clustered environment with load balancing, twenty-four (24) hours a day performance monitoring, and prompt response to and correction of critical hardware failures; (b) provides both a logically and a physically secure and monitored environment and location with controlled access; (c) uses multiple power supply sources and maintains a power generator backup; (d) provides for regular backup and off-site storage of data and provides for restoration of data within reasonable time limits using backup data in the event of an emergency; (e) provides connectivity through redundant high-bandwidth backbones; and (f) has redundant firewall systems with frequently updated firewall rule sets and tools to monitor the network and firewalls for attacks and unauthorized intrusions.
2.8 Support. During the Term of the applicable Schedule, Zywave will provide Customer with technical support relating to the Services during Zywave’s regularly staffed support hours. These hours and the services cancellation policy, incorporated in this Agreement, are subject to change at Zywave’s discretion. The current hours and services cancellation policy can be found at https://agencyfuel.zywave.com/Zywave/Support.aspx.
2.9 Backup and Recovery of Data. Zywave shall maintain commercially reasonable safeguards against the destruction, loss, and alteration of data contained within Zywave products, including the creation of daily backups. In the event of loss of data caused by Zywave or its hosting company, Zywave shall use commercially reasonable efforts to recover or reconstruct data contained within a Zywave product at the time of loss. Zywave agrees that is shall maintain and annually test a business continuity plan.
2.10 Security. Zywave shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer data caused by any third party unless access to the Customer data by such third party is knowingly or negligently granted by Zywave. Zywave agrees to use commercially reasonable efforts, such as the use of firewalls, access restrictions, and data flow monitoring, to protect the confidentiality of data contained within Zywave products. Zywave shall maintain and require all of its authorized third party service providers to maintain appropriate security measures and policies to protect Confidential Information. Zywave further agrees to provide Customer with information available to it and to which it is entitled to disclose regarding its security measures and those of its third party providers, if any, that are applicable to the Services provided by Zywave pursuant to this Agreement upon reasonable request of Customer.
2.11 Professional Services. Any Professional Services are described in the applicable Schedule or Statement of Work (“SOW”).
(a)Change Orders. Either party may propose a change order to add to or change the Professional Services ordered in the Schedule or SOW. Zywave shall be responsible for determining the effect, if any, of the proposed additions or changes on the Schedule or SOW and on Zywave’s compensation, due to the change. Both parties must agree to the change order in writing, and each change order shall specify the change(s) to the Services, and the effect, if any, on the Schedule or SOW and on Zywave’s compensation, due to the change. Once executed by both parties, a change order shall become a part of the applicable Schedule or SOW and thereby expressly incorporated by reference herein and therein. After any such effective change order, references to such Schedule or SOW will be deemed to refer to the applicable Schedule or SOW, as amended to give effect to such change order. In the event of any delay in Customer’s performance of any of the obligations set forth herein or any other delays caused by Customer, the milestones, fees and date(s) set forth in the applicable Schedule or SOW shall be adjusted as reasonably necessary to account for such delays, in accordance with the change order procedure set forth therein.
(b)Estimated Time/Cost Overruns. Additional Professional Services outside of those listed in Exhibit A to a Product Schedules are compensated on a time and materials basis at rates in effect at the time the Professional Services are purchased. Any estimates of the fees set forth in the applicable Schedule or SOW for such Professional Services are provided for budgeting purposes only. Zywave will bill Customer for reasonable and actual travel, living expenses (if applicable) and related incidental expenses incurred by Zywave’s personnel in rendering the Services. Zywave shall promptly report to Customer at the earliest time it discovers that the time or cost of performance of such Services will exceed the estimated time and/or cost authorized in the applicable Schedule, and in any event before proceeding with the portion of the Services that will cause the estimated time and/or cost to exceed the then-current estimate(s). Zywave shall explain in reasonable detail the reason(s) for the anticipated overrun and shall estimate the revision in the estimated time and/or estimated costs necessary to complete the work. Zywave shall not perform such additional work or any work performed in excess of any estimated “cap” identified in the applicable Schedule, unless the parties have executed a change order pursuant to this section 2.11.
2.12 Mailing List. Customer agrees and acknowledges that all Users will be added to the Zywave mailing list. Each User shall have the right to opt out of receiving mailings from Zywave.
2.13 Third Party Content and Integrations. The Hosted Application may contain Third Party Content and may include the ability to integrate for certain third party applications. Zywave will make commercially reasonable efforts to retain the Third Party Content and integrations existing as of the Effective Date of the applicable Schedule, but may from time to time, in its sole discretion, substitute substantially similar data, content, software or integrations. Such Third Party Content or integration providers may require Customer to agree to additional terms and conditions of use which shall be included in the applicable Schedule and/or provided by the third party to Customer.
3. TERM AND TERMINATION.
3.1 Term. This Agreement will commence on the Effective Date and continue until the last Schedule expires or is terminated in accordance with Sections 2.2, 3.2 or 3.3 of this Agreement.
3.2 Termination by Zywave. Zywave may terminate this Agreement and any or all Schedules by providing Customer thirty (30) days prior written notice of such intent as follows: (i) if Customer has failed to pay any invoice required under this Agreement or a Schedule by its due date; (ii) if Customer is in material breach of this Agreement and the breach is not substantially cured within fifteen (15) days of Zywave’s notice to Customer; (iii) if performance under this Agreement by Customer is in violation of any law or regulation and such violation causes a substantial risk of material loss to Zywave or any party related to Zywave; or (iv) if the applicable laws and regulations related to the provision of the Services are revised or supplemented after the Effective Date hereof in a manner that Zywave determines will substantially increase its costs.
3.3 Termination by Customer. Customer may terminate this Agreement and any or all Schedules by providing Zywave thirty (30) days prior written notice of such intent as follows: (i) if Zywave is in material breach of this Agreement and the breach is not substantially cured within fifteen (15) days of Customer’s notice to Zywave; or (ii) if performance under this Agreement by Zywave is in violation of any law or regulation and such violation causes a substantial risk of material loss to Customer.
3.4 Partial Termination. Where the non-breaching party has a right to terminate this Agreement, the non-breaching party may at its discretion either terminate this Agreement and all Schedules or only the applicable Schedule. The termination of a Schedule shall not affect either party’s rights and obligations under this Agreement and other Schedules which have not expired or have not been terminated.
3.5 Rights and Obligations Upon Termination. In the event this Agreement and all Schedules or a Schedule is terminated or otherwise expires for any reason:
(a)Customer’s and Users’ right to access and use the Services shall immediately terminate;
(b)Zywave shall cease and shall cause any agent or subcontractor to cease all Professional Services and minimize any additional costs or reimbursable expenses unless otherwise directed in writing by Customer. Except as may be expressly set forth in the applicable SOW Schedule, after such termination, Customer shall pay Zywave a termination fee for Services performed up to and including the date of termination in accordance with the provisions of the applicable SOW Schedule, on a time and materials basis together with any expenses reasonably incurred in connection therewith.
(c)Within ninety (90) days of termination or expiration, Zywave shall return to Customer or destroy all Customer Confidential Information in its possession and shall cease all use thereof, and Customer shall return to Zywave or destroy all Zywave Confidential Information in its possession and shall cease all use thereof;
(d)Within thirty (30) days after such termination, Customer shall provide Zywave with a final Audit Form and Zywave shall furnish Customer an invoice for any remaining fees owed under this Agreement and any Schedules, and Zywave’s reasonable cost of collection, including but not limited to reasonable attorneys’ fees, if any (the “Final Accounting”); and
(e)Within thirty (30) days after receipt of the Final Accounting, Customer shall pay Zywave all remaining payments due and payable to Zywave under this Agreement and under any Schedules. Failure by Customer to pay the Final Accounting timely shall entitle Zywave to any and all Payment Default remedies.
4. FEES AND PAYMENT TERMS.
4.1 Fees. Customer will pay all fees due according to the Schedules.
4.2 Payment Terms. Zywave will invoice Customer for Services in accordance with the timing and terms provided in the Schedules. All fees shall be paid within thirty (30) days of the invoice date, unless otherwise provided in a Schedule. If Customer is delinquent in any payment under any Schedule, Zywave may, at its option, (i) suspend Customer’s access to any and all Services or (ii) modify the payment terms, to require full payment before the further provision of Services to Customer under any Schedule. In the event Customer does not pay fees when due, Customer shall pay to Zywave interest on the delinquent account at the rate of 1.5% per month or the maximum amount permitted under applicable law, whichever is lower.
4.3 Payment Default. Notwithstanding any of Zywave’s rights enumerated in Sections 3.2 and 3.5 of this Agreement, if Customer fails to timely pay two (2) or more consecutive invoices or does not cure a breach of sections 2.3, 2.4 or 2.6, Zywave may in its sole discretion declare a (“Payment Default”) by providing Customer with written notice of the Payment Default. Customer will have no right to cure a Payment Default unless prior written authorization from Zywave is obtained. In the event of a Payment Default, Zywave shall be entitled to Payment Default Remedies.
4.3.1 Payment Default Remedies. In the event of a Payment Default, Zywave shall be entitled to collect all past and current amounts due and owing, and to collect the remaining fees owed under any affected Schedule (“termination fee”) to be calculated by multiplying the then current periodic payment at the time of the effective date of termination by 80% times the remaining installments of the Term. Zywave may commence an action to recover: the past and current amounts due; the termination fee; interest; expenses; reasonable attorneys’ fees, whether such attorneys’ fees are incurred in collection or otherwise; and, in addition, any and all other such damages as may be the result of the Payment Default.
4.3.2 Liquidated Damages. Customer understands and agrees that Zywave losses incurred as a result of a Payment Default would be difficult or impossible to calculate as of the effective date of termination since they will vary based on, among other things, the number of employees listed on the current Audit Form on the date of termination. Accordingly, the amounts set forth in section 4.3.1 represent Customer’s agreement to pay and Zywave’s agreement to accept as liquidated damages (and not as a penalty) such amount for any Payment Default.
4.4 Taxes. All fees charged by Zywave for Services are exclusive of all taxes and similar fees, now in force or enacted in the future, imposed on the delivery of the Services, for which Customer will be responsible in their entirety and will pay in full, except for taxes based on Zywave’s net income.
4.5 Fee Increases: Zywave may, at any time after the first twelve (12) months of the Initial Term, and in its sole discretion, modify the License Fee upon sixty (60) days notice to Customer, provided that any such modifications may not cumulatively exceed the greater of the percent identified in the Product Schedule or the Consumer Price Index, in a twelve (12) month period.
5. CONFIDENTIALITY AND PERSONAL INFORMATION.
5.1 All proprietary and other nonpublic information of Customer and its clients (including without limitation, the identity of Customer’s clients) disclosed to Zywave in the course of Zywave’s performance of Services under this Agreement (collectively, “Customer Confidential Information”) are valuable trade secrets of Customer and shall remain confidential.
5.2 All proprietary and other nonpublic information of Zywave, including, but not limited to, the source code and documentation pertaining to the Services, disclosed to Customer in the course of Zywave’s performance of Services under this Agreement as well as the terms and pricing (but not the existence) of this Agreement (collectively, “Zywave Confidential Information”) are valuable trade secrets of Zywave and shall remain confidential.
5.3 Neither party shall, during or after the Term, use or disclose any Confidential Information of the other party, except in furtherance of this Agreement or under a court order or subpoena, in which case notice of the order or subpoena shall, if permitted, be sent to the disclosing party, without the prior written consent of the disclosing party. The recipient of Confidential Information shall immediately deliver to the disclosing party (or destroy and certify the destruction of), at any time upon the disclosing party’s request, any data, records or documents in its possession or control which contain the disclosing party’s Confidential Information.
5.4 The parties recognize that the provision of Services by Zywave to Customer may include the uploading of certain information protected by privacy laws. Customer agrees that it shall not provide any information subject to such Privacy Laws in an unsecure manner or without Zywave’s prior written consent.
6. WARRANTIES AND DISCLAIMERS.
6.1 Zywave Warranties. Zywave warrants to Customer as follows:
(a) it will perform the Services using reasonable care and skill; and
(b) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.
6.1.1 Remedy. In the event of any breach of the warranties set forth in this Agreement, Zywave’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, shall be for Zywave to correct or replace, at no additional charge to Customer, any portion of the Services found to be defective; provided, however, that if within a commercially reasonable period Zywave neither corrects such defects nor replaces the defective Services, then Customer’s sole and exclusive remedy shall be to receive direct damages not to exceed the prepaid fees paid to Zywave for use of the defective Services.
6.2 Limitations on Zywave’s Warranties. THE SERVICES, INCLUDING THE ZYWAVE MATERIALS, ARE DISTRIBUTED ON AN “AS IS, AS AVAILABLE” BASIS. EXCEPT FOR THE WARRANTIES EXPRESSED IN SECTION 6.1, ZYWAVE MAKES, AND CUSTOMER RECEIVES, NO REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ZYWAVE, ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT THE SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT; (iii) ANY WARRANTY THAT THE ZYWAVE MATERIALS WILL BE ACCURATE, RELIABLE AND ERROR-FREE; AND (iv) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Customer acknowledges that Zywave does not control the transfer of data over telecommunications facilities, including the Internet. Zywave does not warrant secure operation of the Services or that it will be able to prevent third party disruptions of the Services. Customer further acknowledges and agrees that Zywave is not engaged in providing legal, accounting, or other professional services. Assistance of legal counsel or other appropriate experts should be sought when applying the law, rules, or regulations to a particular set of facts or circumstances. Customer understands and agrees that it will conduct its own independent assessment and evaluation of the appropriateness of the Zywave Materials for Customer’s purposes before using or distributing them to Customer’s clients or prospects.
6.3 Customer Warranties. Customer warrants as follows:
(a) It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;
(b) It has obtained or will obtain the required consents and approvals, including without limitation all Intellectual Property Rights clearances, prior to uploading the Customer Content;
(c) It has obtained or shall obtain such consents as may be necessary in order for Zywave to provide the Services, prior to uploading client information;
(d) Customer agrees to comply and agrees that its Users will comply with all terms and provisions found in the End User Agreement provided to each such User prior to the User’s accessing or use of the Services; (e) Customer’s use of the Services and all Customer Content and Zywave Materials will comply with the Acceptable Use Policy set forth in section 2.4; and
(f) Where applicable, Customer agrees and understands that use of the Send on Behalf functionality in violation of the End User Agreement, the Agreement or this Schedule may result in negative consequences, including but not limited to, the suspension or termination of the IP address associated with its account and Zywave .Customer acknowledges and understands that it is solely responsible for any part of the implementation process not in the control of Zywave, including by not limited to the modification of DNS settings.
7.1 Indemnification by Customer. Customer shall, during and after the Term of this Agreement, defend, indemnify and hold Zywave, its affiliates and suppliers, harmless against any third party action or suit to the extent such action or suit is based on or results from: (i) Customer Content or Customer’s use of the Services violating Customer’s obligation in Sections 2.3 or 2.4 hereof; (ii) data transmitted, received or stored by Customer in violation of any of the provisions of this Agreement or applicable Schedules (iii) Customer’s failure to pay fees when due; (iv) a third party claim that Customer Content infringes a patent, trademark or copyright of others; or (v) claims by Users to the extent the claim is related, directly or indirectly, to any portion of the Services modified by Customer. Customer shall pay those costs and damages finally awarded against Zywave in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. Customer obligations under this section are conditioned on: (i) Customer receives prompt notice in writing of such claim; (ii) Customer shall have sole control over the defense and settlement thereof; and (iii) reasonable cooperation from Zywave, as applicable, (at Customer’s expense) in response to Customer’s request for assistance.
7.2 Indemnification by Zywave. Zywave shall defend, indemnify, and hold Customer harmless against any third party action brought against Customer to the extent such action is based upon: (i) a claim that the Hosted Application or Zywave Materials (except for any content or materials posted or provided by third parties such as other users of Zywave’s Services) infringes a patent or copyright of a third party, or (ii) a breach of Zywave’s obligations in Section 5, and Zywave shall pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. Zywave obligations under this section are conditioned on: (i) Zywave receives prompt notice in writing of such claim; (ii) Zywave shall have sole control over the defense and settlement thereof; (iii) reasonable cooperation from Customer, as applicable, (at Zywave’s expense) in response to Zywave’s request for assistance, and (iv) Customer not being in breach of this Agreement. If the Hosted Application or Zywave Materials become, or in Zywave’s opinion are likely to become, the subject of an infringement or misappropriation claim, Zywave may, at its option and expense, either (i) procure for Customer the right to continue using the Hosted Application or Zywave Materials; (ii) replace or modify the same so that they become non-infringing; or (iii) terminate Customer’s right to use all or part of the Services and give Customer a refund or credit (at Zywave’s discretion) for the fees actually paid by Customer to Zywave for the prior twelve month period for the relevant Services as of the date of termination less a reasonable allowance for the period of time Customer actually used the relevant Services. Notwithstanding the foregoing, Zywave will have no obligation of defense or indemnification or otherwise with respect to any claim or demand based upon (i) any use of the Hosted Application or Zywave Materials not in accordance with this Agreement or a Schedule or for purposes not intended by Zywave; (ii) any use of the Hosted Application in combination with other products, equipment, software, or data not intended, recommended, supplied, or approved by Zywave in writing; (iii) any modification of the Hosted Application or Zywave Materials made by or content provided by any person other than Zywave; (iv) where Customer continues the allegedly infringing activity after being notified thereof and is provided modifications, replacements or other remedies that would have avoided the alleged infringement or (v) anything Customer or Users provide which is incorporated into the Zywave Materials. This Section states Zywave’s entire liability and obligation and Customer’s sole and exclusive remedy for infringement and misappropriation claims, demands, and actions.
8. EXCLUSION AND LIMITS OF LIABILITY.
8.1 Exclusions. IN NO EVENT WILL ZYWAVE BE LIABLE TO CUSTOMER, USERS OR OTHER THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, BUSINESS INTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE HOSTED APPLICATION, THE ZYWAVE MATERIALS AND ANY OTHER SERVICES OR MATERIALS PROVIDED BY ZYWAVE, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, EVEN IF ZYWAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Limitations of Liability. OTHER THAN ZYWAVE’S OBLIGATIONS TO INDEMNIFY CUSTOMER AS SET FORTH IN SECTION 7 HEREIN, ZYWAVE’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES AND COSTS SHALL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY CUSTOMER TO ZYWAVE FOR THE PRIOR TWELVE MONTH PERIOD FOR THE SOFTWARE OR SERVICE UPON WHICH SUCH DAMAGES AND/OR COSTS ARE BASED. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. EACH PARTY ACKNOWLEDGES AND AGREES THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE LIMITATIONS HEREIN ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED UNDER THIS AGREEMENT.
9. INTELLECTUAL PROPERTY LICENSE AND OWNERSHIP.
9.1 To the extent required by the parties for the performance of the Services under the Schedules, each party hereby grants to the other a nonexclusive license to use its trademarks, trade names, and other source-identifying indicia (“Marks”) and Customer Content solely in connection with the provision of the Services and in a form approved or provided the owner. Zywave style guidelines are available on AgencyFuel. The parties shall not be entitled to distort or otherwise manipulate the Marks of the other and all use of the same by a party shall inure to the benefit of owner of the Marks.
9.2 Zywave retains all rights, title and interest in the Hosted Application. Zywave grants Customer a nonexclusive, nontransferable, revocable license to access and use the Hosted Application and where applicable, the Zywave Material, solely in connection with the Services as provided under this Agreement. Customer agrees not to download or otherwise copy, reverse assemble, reverse compile, decompile, or otherwise translate the software portions of the Hosted Application. Customer further agrees not to remove or alter any copyright or other proprietary notice on or in the Hosted Application without Zywave written consent. Customer has the right to modify and create derivative works based upon the Zywave Materials, excluding third party licensed materials. Customer agrees that all use of Zywave Materials pursuant to this license, including use of any modifications or derivative works, will terminate upon termination of the applicable Schedule.
9.3 Except as otherwise provided in this Agreement, Customer acknowledges that as between Customer on the one hand, and Zywave on the other, any and all Intellectual Property Rights embodied in the Zywave Materials developed by Zywave in the performance of the Services are works of original authorship and confidential and trade secret information of Zywave, all rights in which shall be vested solely in Zywave. Such works shall be owned exclusively by Zywave or its licensors, as the case may be. Customer shall not commit or permit any act or omission that would impair Zywave’s Intellectual Property Rights. Customer further acknowledges and agrees that, except as expressly allowed in this Agreement or the Schedule, the Zywave Materials (i) may not be modified; (ii) may be used solely for Customer’s own use; and (iii) may not be used as part of a commercial time-sharing or service bureau or in any resale capacity. Customer further acknowledges and agrees that all Zywave Materials are proprietary to Zywave or its licensors, and Zywave or such licensors retain exclusive ownership of the same throughout the world, including all Intellectual Property Rights embodied therein.
10. GENERAL PROVISIONS.
10.1 Independent Contractor. At no time will Customer represent that it is acting as an agent of Zywave, nor will Zywave represent that it is acting as an agent of Customer. Customer on the one hand, and Zywave on the other, will act at all times as independent contractors. Nothing in this Agreement will be deemed to constitute a partnership, joint venture, employment, affiliated business arrangement, or agency relationship between the parties.
10.2 Notices. All notices, demands or other communications required or permitted under this Agreement will be made in writing and be deemed to have been duly given if delivered by hand or electronic mail or three (3) business days following being mailed by first class mail, postage paid or one (1) business day following being sent by a nationally recognized overnight courier service. If addressed to Zywave, notices shall be sent to Zywave, Inc.; ATTN: Zywave Legal Department, 10700 W. Research Drive, Suite 400, Milwaukee, WI 53226. If addressed to Customer, notices shall be sent to the name and address indicated in the signature blocks below. The parties may designate in writing other recipients for providing notice.
10.3 Assignment. This Agreement may be assigned by either party with prior written notice to the other. In no event shall this Agreement be assigned to any competitor or potential competitor of the other party. Any such assignment shall be null and void. Zywave may assign its rights and obligations under this Agreement, as a whole, as part of a merger or sale of substantially all the assets or stock of Zywave. Any permitted or approved assignees shall be bound by all the terms and conditions of this Agreement as if they were a party hereto.
10.4 Counterparts. This Agreement and the Schedules may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
10.5 Severability. The invalidity or unenforceability of any provision in this Agreement will not affect the validity or enforceability of any other provision. However, it is intended that any invalid or unenforceable provision of this Agreement be construed by a court of competent jurisdiction by limiting or reducing it so as to be valid or enforceable to the extent compatible with applicable law.
10.6 Governing Law and Venue. This Agreement will be governed by and construed and enforced in accordance with the laws of Ontario, without application of conflicts of laws or choice of law principles. This Agreement is deemed entered into in Wisconsin. The parties agree that the exclusive venue and jurisdiction for any disputes relating to this Agreement or the rights or obligations of the parties, shall be the provincial and federal courts governing Ontario, and the parties consent and submit to the personal jurisdiction and venue of such courts. The parties agree that this contract is not a contract for the sale of goods; therefore, this Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (“UCITA”), or any references to the United National Convention on Contracts for the International Sale of Goods.
10.7 Entire Agreement; Amendments. This Agreement, including any applicable Schedules, constitutes the entire agreement between the parties pertaining to the subject matter of the Services and supersedes all negotiations, preliminary letters of intent or agreements, and all prior or contemporaneous discussions and understandings of the parties. No amendment, change, modification or waiver of any of the terms of this Agreement or a Schedule are effective unless made in writing and executed by all parties to this Agreement. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the ordering of the Services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Zywave to object to such terms, provisions or conditions. Orders are non-cancelable, non-refundable and non-returnable.
10.8 Rights and Remedies; Waiver. The parties acknowledge that any breach or evasion by either party of any provision of this Agreement may result in injury to the other party, and may cause that other party to suffer damages that cannot be quantified monetarily. Accordingly, upon such a breach that has not been cured within fifteen (15) days after the injured party notifies the other party of such breach, or upon any breach of Sections 5 (Confidentiality and Health Information) above, the injured party shall be entitled to a preliminary and permanent injunction, as well as to any other legal or equitable remedies to which such party may be entitled. All such rights and remedies shall be cumulative, and the exercise of any one of them shall not be deemed to be a waiver of any other. The failure of either party to enforce any of the provisions hereof will not be construed to be a waiver of the right to enforce such provision at a later time or to enforce any of the other provisions hereof.
10.9 No Third Party Beneficiaries. This Agreement is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party. Notwithstanding the above, the parties acknowledge that the Services may include software and materials licensed by Zywave from third parties (“Zywave Licensors”). Zywave Licensors may be direct and intended third party beneficiaries of this Agreement and may be entitled to enforce it directly against Customer to the extent (a) this Agreement relates to the licensing of Zywave Licensors’ products; and (b) Zywave fails to enforce the terms of this Agreement on their behalf.
10.10 Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other party to the extent fulfillment or performance of any terms of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of terrorists or enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes or availability failure; fires; floods; acts of God; federal, state or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes hereinbefore enumerated or not. This clause shall not apply to the payment of any sums due under this Agreement by any party to another.
10.11 Compliance and Self Certification. During the Term and for a period of one (1) year thereafter, Customer shall maintain and make available to Zywave records sufficient to allow audit, upon ten (10) days’ written notice, of Customer’s full compliance with this Agreement; provided, that such audit shall not occur more than one (1) time in any twelve (12) month period and shall be performed during regular business hours. If such audit reveals any noncompliance by Customer, Customer shall reimburse Zywave for the costs and expenses of such verification process (including, but not limited to the fees of an independent auditor, if any) incurred by Zywave and pay Zywave for the period of time of any use of the Services beyond the scope, license terms authorized or granted in the applicable Schedule at Zywave’s then-current list price, and Customer shall promptly cure any such noncompliance; provided, however, that the obligations under this Section 10.12 do not constitute a waiver of Zywave’s termination rights or any other rights hereunder.
Without prejudice to Zywave’s audit rights pursuant to the Agreement, Customer will, within thirty (30) days of Zywave’s request, document and certify that use of the Services hereunder at the time of the request, including but not limited to maintaining a current Audit Form, is in full conformity with the licenses granted hereunder. Failure to comply with this section may result in penalty equal to 25% of Customer’s then-current License Fees on each regularly scheduled invoice issued while Customer fails to comply.
10.12 Survival. Sections 1, 3, 4, 5, 6.2, 8, 9 and 10 shall survive expiration or any termination of this Agreement for as long as necessary to permit their full discharge.