ZIF End User License Agreement

  1. Implementation And Infrastructure
  2. Extent of License
  3. Pricing & Fees
  4. Warranty, Limitation on Liability, and Proprietary Rights
  5. Miscellaneous

License Agreement
This License Agreement is made and entered into as of __, 2020 (the “Effective Date”), between GAVS Technologies N.A. Inc. (“Licensor”) and the customer identified in the Order Form to which this License Agreement is attached (“Licensee”), which is hereby incorporated herein by reference. Defined terms are set forth on Exhibit A. For good and valuable consideration, the sufficiency and receipt of which are acknowledged, Licensor and Licensee agrees as follows:

  1. Implementation And Infrastructure
    1. Implementation. Unless otherwise specified herein, Licensor will deliver to Licensee (by implementation) one copy of the Licensed Good in accordance with the terms of this License Agreement. The Licensed Good may be implemented either (i) remotely and will be hosted, managed, operated and maintained on the Implementation Site by the Licensor for remote electronic access and use by the Licensee and its Authorized Users (“SaaS Implementation”) or (ii) deployed on-premise at the Implementation Site (“On-Premise Implementation”). Licensor will complete the Implementation Services according to the installation schedule set forth in the Order Form to which this License Agreement is attached; provided, however, that Licensor will not be responsible for delays caused by reasons beyond its control, including, without limitation, Licensee’s failure to meet any other obligations under this License Agreement.
    2. Infrastructure Requirements. The Licensed Good will be available to access from Microsoft® Azure® Cloud as a SaaS Implementation. Licensor may deploy data collectors (agents) in a server (Physical / VM) provided by the Licensor.
    3. Acceptance of Implementation Services. The Implementation Services will be deemed to be complete, and the Licensed Good accepted, when Licensor confirms to Licensee that the Licensed Good has been properly installed and is ready for use, and Licensee confirms such installation and suitability for use (the “Implementation Date”).
    4. Support Services; Training; and Updates. Licensor shall provide Licensee with Licensor’s standard customer support services in accordance with Licensor’s service support schedule, a copy of which is attached hereto as Exhibit B (the “Support Schedule”). Licensor may amend the Support Schedule from time to time. Support services shall be provided remotely. Licensor shall provide training on the Licensed Good remotely to all Authorized Users. All Updates shall (i) be available at no additional charge to Licensee, (ii) remain the property of Licensor, and (iii) be licensed to Licensee as part of the “Licensed Good” under this Agreement.
    5. Deployment: The Licensed goods is only for single deployment.
  2. Extent of License
    1. Grant. Subject to the restrictions and limitations set forth in this License Agreement, Licensor hereby grants to Licensee and Licensee’s Affiliates a non-transferable, non-assignable, non-exclusive, revocable, and limited license to do the following during the Term: (a) use the Licensed Good for Licensee’s business purposes only; and (b) permit the Authorized Users to use the Licensed Good. Licensee, by a prompt written notice to the Licensor, shall inform of any change in the number of Authorized Users set forth on the Order Form. If the number of Authorized Users in a production environment exceeds the number of Authorized Users set forth on the Order Form to which this License Agreement is attached, then Licensor reserves the right to invoice Licensee and Licensee shall be obligated to pay Licensor for such excess use at Licensor’s then-current list rates or as otherwise set forth on the Order Form to which this License Agreement is attached. Such right will be Licensor’s remedy in the event the number of Authorized Users in a production environment exceeds the Authorized Users covered by this License Agreement. This remedy is without prejudice to any other remedies available to Licensor at law or equity or under the License Agreement.
    2. General Restrictions and Limitations. This License Agreement sets forth the entirety of Licensee’s rights to use, reproduce or otherwise deal with the Licensed Good and Documentation. Without limiting the generality of the foregoing, this License Agreement does not include the right to, and Licensee will not directly or indirectly: (a) remove, erase, obscure, or alter any notice of copyright, trademark, trade secret, or other Proprietary Right related to the Licensed Good or Documentation; (b) engage in or permit any use, reproduction, distribution, disposition, possession, disclosure or other activity involving any Licensed Good or Documentation that is not expressly authorized under this License Agreement or otherwise in writing by Licensor; or (c) provide use of the Licensed Good or Documentation in a computer service business, computer service bureau or network time sharing arrangement (d) rent, lease, sublicense, loan, sell, distribute, market, or commercialize or otherwise exploit any portion of the Licensed Good or its components (e) rename files, modify, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code from, or create derivative works based upon the Licensed Good, in whole or in part(f) Licensee may not duplicate or copy any portion of the Licensed Good or Documentation, unless otherwise set forth herein.. All rights not expressly set forth hereunder are reserved by Licensor. Licensor reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this License Agreement.
    3. Sub-License. The Licensee has no right to grant sub-licensees for the Licensed Good without a written consent of the Licensor and will not authorize any person to grant any sub-license with respect to the Licensed Good.
    4. Ownership. The Licensed Good and all Improvements thereto shall be the property of Licensor.
    5. Term and Termination. The Term of the License Agreement is set forth on the Order Form. Either party, upon thirty days written notice, may terminate this License Agreement if the other party materially breaches this License Agreement and such breach remains uncured at the end of the thirty-day period. Notwithstanding the foregoing, Licensor may immediately terminate this License Agreement if Licensee fails to pay any amount when due under this License Agreement, where such failure continues for more than fifteen days. The License and any other right granted to Licensee with respect to any Licensed Good or Documentation will terminate effective as of the effective date of the termination and the Licensee will return to Licensor any and all Licensed Good, Confidential Information of Licensor, or Documentation in the possession or control of Licensee.
  3. Pricing & Fees
    1. Subscription License Fee. Licensor is providing a perpetual subscription license model to Licensee for the number of Devices defined in the Order Form. Licensee shall pay to Licensor a Subscription License Fee specified in the Order Form.
    2. Payment. Licensor will invoice Licensee upon Licensee’s Acceptance of Implementation Services, Once the invoice is received by Licensee following such acceptance, Licensee will verify the invoice, and if correct, pay the fees due within thirty (30) days of receipt of such invoice. If the invoice is inaccurate, Licensee will notify Licensor and Licensor shall reissue the invoice. Licensee will then pay the reissued invoice of undisputed amounts within thirty (30) days of receipt.
    3. Records and Audit. Licensee will keep accurate records of the users that are using the Licensed Good and the servers that the Licensed Good is configured for. Licensee understands and acknowledges that an appropriate audit structure is already built into the system and if it is revealed that during any quarter more than the authorized devices have been used by the Licensee, the fees/charges for usage of license through those extra devices shall be charged to the Licensee in the subsequent quarter. However, during the Term, and for six months after the Term ends, Licensor will have the right, exercisable not more than once per calendar year, to have an independent third party audit, at Licensor’s sole cost and upon reasonable notice, Licensee’s records related to the users of the Licensed Good and the servers that the Licensed Good is installed on solely for the purpose of verifying Licensee’s compliance with this License Agreement. Licensee will provide the independent third party with reasonable access for any audit. Any such audit shall be conducted at a mutually agreeable time and date during regular business hours at Licensee’s premises and shall not unreasonably interfere with Licensee’s business activities. Any such independent third party auditor shall, prior to any such audit, execute Licensee’s standard non-disclosure/confidentiality agreement, and shall abide by all Licensee policies and guidelines for visitors to Licensee’s premises. If an audit by Licensor discloses that the number of Devices during any [tbd] is in excess of the License Fee paid by the Licensee to the Licensor for that period, Licensee shall pay the usage fee for the incremental devices. Such right will be Licensor’s remedy in the event the number of Devices during any quarter is in excess of the number permitted by this License Agreement.
  4. Warranty, Limitation on Liability, and Proprietary Rights
    1. Limited Warranties. Licensor warrants that that (a) it has the requisite rights and authority to enter into this License Agreement and grant the rights and license contemplated by this License Agreement, (b) it is the owner and developer of the Licensed Good, and (c) the Licensed Good will conform with the specifications set forth in the Document, when implemented, operated, and used as recommend in the Documentation and in accordance with this License Agreement. Licensor further warrants that the Licensed Good will be delivered free of any virus, bug, trojan horse, worm, backdoor, or otherwise malicious code, or any code or command intended to bring down the Licensed Good or Licensee’s computers/networks automatically or upon command or otherwise impair their use (“Malicious Code”). In the event Licensor introduces any Malicious Code into the Licensed Good or any of Licensee’s equipment, Licensor shall, in addition to any other rights or remedies available to Licensee or Licensee’s Affiliates, make commercially reasonable efforts to restore any and all data or programming lost by Licensee or Licensee’s Affiliates as a result of such virus or disabling code.

      Licensor’s warranties under Section 4.1(a) do not apply to any non-compliance to the extent resulting from any: (a) use not in accordance with this License Agreement or Documentation; (b) modification, damage, misuse or other action of Licensee or any third party; (c) combination of the Licensed Good with any software, equipment or systems not permitted by the Documentation or otherwise approved by Licensor, or (d) any failure of Licensee to comply with this License Agreement or the Documentation.

      THE WARRANTIES SET FORTH IN THIS SECTION 4.1 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF LICENSOR, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY LICENSED GOOD, DOCUMENTATION OR OTHER ITEMS FURNISHED BY OR ON BEHALF OF LICENSOR UNDER THIS LICENSE AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).
    2. Proprietary Rights. Licensee expressly acknowledges that the Licensed Good and Documentation are exclusively owned by Licensor and involve valuable Proprietary Rights of Licensor. No title to or ownership of any Licensed Good, Documentation or any Proprietary Rights associated therewith, is transferred to Licensee or any other person under this License Agreement. Without limiting the generality of the foregoing, Licensor reserves all of its Proprietary Rights in the Licensed Good and Documentation.

      Licensor will not infringe or violate and will take appropriate steps and precautions for the protection of, the Licensee’s Proprietary Rights. Licensee will use commercially reasonable efforts to prevent any unauthorized use of the Licensed Good.

      Each party agrees to protect the other’s Confidential Information at all times and in the same manner as each protects the confidentiality of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. Neither party shall, except with respect to those of its employees and contractors with a need to know under this License Agreement, use or disclose to any person, firm or entity any Confidential Information of the other party without such other party’s express, prior written permission; provided, however, that notwithstanding the foregoing, a party may disclose Confidential Information to the extent that it is required to be disclosed pursuant to a statutory or regulatory provision or court order provided the party whose Confidential Information is to be disclosed is given prompt written notice by the other party of such compelled disclosure. The rights and obligations of the parties under this Section 4.2 are in addition to the rights and obligations of the parties under any confidentiality agreement previously entered into between the parties, if any.
    3. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS LICENSE AGREEMENT, AND ITS SUBJECT MATTER FOR ALL EVENTS, ACTS, OR OMISSIONS EXCEED THE AMOUNT ACTUALLY PAID AND PAYABLE IN THE TWELVE MONTH PERIOD PRIOR TO THE DATE THE CIRCUMSTANCE GIVING RISE TO THE CLAIM FIRST AROSE.

      TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL ANY OF THE TERMS OF THIS LICENSE AGREEMENT BENEFIT OR CREATE ANY RIGHT OR CAUSE OF ACTION IN OR ON BEHALF OF ANY PERSON OR ENTITY OTHER THAN LICENSOR AND LICENSEE. THE PROVISIONS OF THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE.

      LICENSOR HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF LICENSEE DATA.

      NOTWITHSTANDING THE ABOVE, THE LIMITATIONS SET FORTH IN THIS SECTION 4.3 DO NOT APPLY TO ANY OF THE FOLLOWING: (A) LICENSEE‘S INDEMNIFICATION OBLIGATIONS HEREUNDER, (B) ANY BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR (C) CLAIMS RELATING TO NEGLIGENT ACT, OMISSION OR WILLFUL MISCONDUCT.
    4. Licensor shall defend, indemnify and hold Licensee and its Affiliates and their respective directors, officers, employees and agents (collectively, “Licensee Indemnitees”) harmless from and against all costs, liabilities, damages, losses and expenses (including reasonable attorneys’ fees) incurred, claimed or sustained by Licensee arising out of or related to any third party claim that the Licensed Good and/or the Documentation, when used in accordance with this Agreement, infringes, violates or otherwise misappropriates any patent, copyright, trade secret, trademark, or other third party intellectual property right.
    5. Licensee shall defend, indemnify and hold harmless Licensor and its affiliates and their respective directors, officers, employees, and agents (collectively “Licensor Indemnitees”) harmless from and against all costs, liabilities, damages, losses and expenses (including reasonable attorneys’ fees) incurred, claimed or sustained by Licensor arising out of or on account of any negligent act, omission, or willful misconduct by Licensee or its Authorised Users with respect to the installation or use of the Licensed Good, or failure to comply with the terms and conditions of this License Agreement.
  5. Miscellaneous.
    1. Non-Assignability. Neither party shall assign or transfer this License Agreement or any of its obligations hereunder without the other party’s express, prior written consent which shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Licensor shall be entitled to assign, sell, or dispose of, this License Agreement, its interest herein and its rights and obligations hereunder, to any, affiliate, acquiring party, or in the event of a merger or reorganization.
    2. Entire Agreement, Modification. This License Agreement constitutes the entire agreement between the parties to this License Agreement and supersedes all prior agreements with respect to the Licensed Good. The terms of this License Agreement shall not be waived, modified, supplemented or terminated except in writing signed by the party against whom enforcement is sought and then only to the extent expressly set forth in such writing.
    3. Governing Law; Venue; Attorneys’ Fees. This License Agreement is governed by and shall be construed under New York law, without reference to principles of conflict of laws or choice of laws.
    4. No Third-Party Beneficiaries. This License Agreement is intended to be solely for the benefit of the parties to this License Agreement and is not intended to confer, and does not confer, any benefits upon, or legal or equitable right, on any other person.
    5. Severability. If any provision in this License Agreement shall be held unenforceable in any way, such provision shall be modified to the extent necessary to make the provision enforceable to the fullest extent permitted by law. In the event modification will not remedy the unenforceability of the provision, the provision shall be stricken without invalidating the remaining provisions of this License Agreement.
    6. Waiver. No delay or failure to exercise any right or remedy in the event of a breach of this License Agreement shall be construed as a waiver of that breach or any later breach. The waiver of any condition or any breach of this License Agreement shall not be deemed to be a waiver of any other condition or any other breach.
    7. Publicity. Neither Party shall acquire any rights with regard to the names, trademarks, service marks or trade names of the other by reason of use pursuant to this Agreement.
    8. Execution; Counterparts. This License Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, when taken together, shall constitute one and the same instrument. Transmission by electronic mail of an executed counterpart of this License Agreement is permitted.

Exhibit A

Whenever used in this License Agreement, the following terms will have the following specified meanings:

“Authorized Users” means the number of employees, consultants, contractors, or service providers of the Licensee and/or its Affiliates who are identified on the Order Form.

“Authorized Users” means the number of employees, consultants, contractors, or service providers of the Licensee and/or its Affiliates who are identified on the Order Form.

Confidential Information” means: (a) with respect to Licensor, the pricing hereunder and technical information regarding the Licensed Good; and (b) with respect to Licensee, all documents, computer programs and documentation, reports, financial or other data, records, forms, tools, products, services, methodologies, present and future research, technical knowledge, marketing plans, trade secrets, and other materials obtained by Licensor from Licensee, whether tangible or intangible and whether or not stored, compiled, or memorialized physically, electronically, graphically, in writing, or by any means now known or later invented. Notwithstanding the foregoing, Confidential Information does not include work product or information developed during performance of this License Agreement or information which: (i) is already known to the recipient at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure of recipient; (iii) is independently developed by recipient without benefit of the other party’s Confidential Information; or (iv) is received from a third party which is not under and does not thereby breach an obligation of confidentiality.

Documentation” means any user manuals, technical manuals, specifications, hardware configurations, operating environment and other documentation relating to the Licensed Good furnished by Licensor to Licensee under this License Agreement.

“Implementation Date” has the meaning set forth in Section 1.3

“Implementation Services” means services performed or to be performed by Licensor to install the Licensed Good on the Implementation Site. Implementation Services include integration with Licensor toolset for data input into the Licensed Good. Environment access required for the Agents or the Software will be provided by the Licensee.

“Implementation Site” means the data center, location or server or servers that the Licensed Good is to be installed on as described on the Order Form. In a SaaS Implementation, the Licensor shall have sole control over the location, operation, provision, maintenance and management of the Implementation Site.

“Improvements” means, among other things, any advances, alterations, or modifications which can be directly used or applied by the Licensed Good that will change the architecture, feature or UX.

“Licensed Good” means the ZIF Platform which is owned by the Licensor and will be delivered by Licensor to Licensee for implementation and operation on the Implementation Site, including all Updates.

Proprietary Rights” means any patent, copyright, trademark, trade secret or other intellectual property right.

“Subscription License Fee” has the meaning set forth under ORDER FORM.

Term” has the meaning set forth in Section 2.6.

“Update” means any revision, release, enhancement, update, correction, bug fix, or other modification of the Licensed Good that Licensor, in its sole discretion, makes generally available, releases or provides after proper completion of the Implementation Services.

“Devices’ include but not limited to, any server, storage appliances, Network devices like Switches, routers, Load balancers, and firewalls that are monitored by one or more monitoring tools pursuant to this License Agreement.

EXHIBIT B

SUPPORT SCHEDULE

The Licensor will setup a support desk to handle any issues post the implementation. This remote support desk will provide support and contacted over email or phone or chat.

The support desk will help address any bugs and minor enhancements that do not take more than 5 business days for resolution. For any enhancements, that may take more than 5 business days, would be handled through Change Request process.

Following is the defintion of the severity to be assigned to incidents reported –

Severity Definition
Severity 1 ZIF system or application is down or severely impacted such that Licensee cannot conduct business operation as a result of the issue reported.
Severity 2 Major process or function within the implemented ZIF system or application is unavailable; a problem is stopping or affecting multiple users from working
Severity 3 Minor process or function within the implemented ZIF system is unavailable; a problem is stopping or affecting a single user; problem is localized
Severity 4 incidents/ Service requests by a single user

Following are the SLAs identified for post implementation support services –

Severity Response Time Resolution Time
Severity 1 15 minutes Within 4 6hours
Severity 2 15 minutes Within 8 hours
Severity 3 15 minutes Within 24 hours
Severity 4 15 minutes Within 72 hours
Enhancements /
New Requirements
1 Business Day Requirement estimation
and proposal (5 Business days)

Note: SLAs will be measured basis the Incidents reported to Service desk via Email or ticketing system