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END-USER PRODUCT AND LICENSE AGREEMENT
PLEASE READ CAREFULLY: THIS END-USER PRODUCT AND LICENSE AGREEMENT (“AGREEMENT”) AND THE TERMS AND CONDITIONS (OR OTHER APPLICABLE AGREEMENT) UNDER WHICH THE ZUNCH PRODUCTS WAS SOLD, LEASED OR OTHERWISE PROVIDED AND THE PRODUCT SOFTWARE WAS LICENSED IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“CUSTOMER”), AND ZUNCH LABS, LLC (“ZUNCH”). USE OF THE ZUNCH PRODUCTS AND THE PRODUCT SOFTWARE ARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE APPLICABLE THIRD-PARTY LICENSES. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE YOU CLICK THE “I AGREE” BUTTON.
BY CLICKING “I AGREE”, PURCHASING ANY ZUNCH PRODUCT, DOWNLOADING, USING, CONFIGURING OR INSTALLING THE PRODUCT SOFTWARE, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT AND THE APPLICABLE THIRD PARTY LICENSES FOR AND ON BEHALF OF YOUR ORGANIZATION, AND ARE DOING SO, (B) YOU AND YOUR ORGANIZATION CAN LEGALLY ENTER INTO THIS AGREEMENT AND THE APPLICABLE THIRD PARTY LICENSES AND SATISFY ALL OF THEIR REQUIREMENTS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND THE ORGANIZATION SHALL BE BOUND BY THESE TERMS AND CONDITIONS OF THIS AGREMENT AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT BUY ANY OF THE ZUNCH PRODUCTS OR USE ANY PRODUCT SOFTWARE.
Zunch reserves the right to update and change, at any time and without notice, this End-User Product and License Agreement and all documents incorporated by reference. You can find the most recent version of this End-User Product and License Agreement at http://www.zunch.com/legal/terms/. Your continued use of the Zunch Product and/or the Product Software after any such changes constitutes your acceptance of the new End-User Product and License Agreement.
IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, PLEASE CONTACT US AT:
Zunch Labs, LLC
7700 Windrose, 2nd Floor
Plano, Texas 75024
This Agreement shall be effective following your execution and submission of this Agreement by clicking “I AGREE” or otherwise signifying your acceptance of this Agreement. Zunch and Customer agree that the following terms and conditions shall apply to all Zunch Products and Product Software. In consideration of the covenants and agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are acknowledged, the parties hereby agree as follows:
- Definitions.
(a) “Data” means the files and data generated by use of the Zunch Products and/or Product Software.
(b) “Documentation” means the documentation provided by Zunch with the Zunch Products and/or Product Software.
(c) “Effective Date” means the date of purchase of the Zunch Product.
(d) “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; and (h) the Apache License.
(e) “Product Software” means, collectively, (a) the Zunch Software, (b) any Open Source Software included with the Zunch Product and (c) any updates and upgrades provided from time to time by Zunch.
(f) “Third-Party License” means any of the Open Source Licenses (as defined in Section 3).
(g) “Third-Party Licensor” means the licensor of Open Source Software.
(h) “Zunch Product” means any hardware product sold by or on behalf of Zunch.
(i) “Zunch Software” means the software and other intellectual property developed or created by or on behalf of Zunch and included with the Zunch Product or on a stand-alone basis (other than any Third-Party Software or Open Source Software) and the Documentation, for which the Customer has acquired the right to use under this Agreement and any updates and upgrades provided from time to time by Zunch.
- Software License.
(a) Licenses. Subject to the terms and conditions of this Agreement, Zunch grants to Customer a non-exclusive, non-transferable, royalty-free license (the “License”) to use (a) the Product Software on or in connection with the Zunch Products, solely for internal business purposes and not as a standalone product or technology, (b) Data (including without limitation with the Zunch Product) solely for internal business purposes, and (c) the Documentation solely in connection with the use of the Zunch Product.
(b) Proprietary Rights Protection. This License confers no ownership rights to Customer and is not a sale of any rights in the Product Software, the media on which the Product Software is recorded or printed, or the Data. Customer does not acquire any rights, express or implied, in the Product Software, or the Data, other than those rights specified in this Agreement. Zunch or its Third Party Licensors shall own and retain ownership of all right, title, and interest in and to (i) the Product Software and any copies, modifications, enhancements, and derivative works thereof; (ii) the Data and any copies, modifications, enhancements, and derivative works thereof; (iii) any ideas, suggestions, or feedback relating to the Product Software, the Zunch Product and/or the Data (“Feedback”); and (iv) all intellectual property rights embodied within the foregoing subparagraphs (i), (ii) and(iii). Customer hereby irrevocably assigns and agrees to assign all of its right, title, and interest in and to any Feedback to Zunch. Customer shall not copy, modify, adapt or merge copies of the Product Software or the Data except as provided in this Agreement. Customer shall not translate, reverse engineer, de-compile or disassemble the Product Software, except to the extent that law explicitly prohibits this contractual restriction, use the Product Software in a service bureau or for the benefit of third parties, or use the Data directly or indirectly with a product that is competitive with Zunch’s proprietary products. Customer shall not delete or in any manner alter the copyright, trademark, and other proprietary rights notices of Zunch and/or its Third-Party Licensors appearing on any Zunch Product, any Product Software or any other Zunch products. Customer will reproduce such notices on all copies it makes of any Product Software. Zunch and its Third-Party Licensors reserve all other rights and licenses in and to the Product Software not expressly granted to Customer under this Agreement.
(c) High-Risk Activities. The Product Software is not intended for use in connection with any high-risk activity, including, without limitation, air travel, space travel, firefighting, police operations, power plant operation, military operations, rescue operations, hospital or medical operations, nuclear facilities or equipment, or the like. Customer agrees not to use or allow the use of the Product Software for or in connection with any such high-risk activity.
(d) Government Sales. If Customer is a branch or agency of the United States Government or a contractor thereto, the following provision applies. The Product Software is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the department of defense consistent with the policies set for the in 48 C.F.R. 227.7202-1 and 227.7202-3 (in each case as amended or supplemented from time to time).
(e) Audit Rights. Customer shall keep reasonable records relating to its use of the Product Software and its compliance with the License granted herein and the applicable Third-Party Licenses. A chartered or certified public accountant selected by Zunch may, upon reasonable notice and during normal business hours, but no more often than once per year, inspect Customer’s records to confirm compliance with this Agreement (and the applicable Third-Party Licenses).
- Open Source Software. Customer hereby acknowledges that the Product Software may also utilize or include Open Source Software that must be licensed under the specific license terms applicable to such Open Source Software. Acknowledgements, licensing terms, copyright notices and disclaimers for such Open Source Software (the “Open Source Licenses”) are available at www.zunch.com/opensourcelicenses. Customer agrees to review any such Open Source Licenses and other related documentation in order to determine which portions of the Product Software are Open Source Software and are licensed under an Open Source License. To the extent any such Open Source License requires that Zunch provide Customer the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to Customer in this Agreement, then such rights in the applicable Open Source License shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such Open Source Software. Customer (a) acknowledges that any such Open Source License is solely between Customer and the applicable Third-Party Licensor of the Open Source Software and (b) shall comply with the terms of any such applicable Open Source License. Open Source Software is distributed WITHOUT ANY WARRANTY, without even the implied warranty of MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Where the terms of an Open Source License entitle Customer to the source code of any such Open Source Software, such source code is available under the terms of the applicable Open Source License by contacting Zunch at the address above and identifying the specific Open Source Software for which Customer wants the source code.
- Installation, Training, Support and Other Services. Unless otherwise agreed by the parties, Zunch shall be under no obligation to provide any services, whether relating to installation, training, support or otherwise, as a result of this Agreement (or any Third-Party License).
- Limited Warranties.
(a) Zunch Products
(i) Zunch hereby warrants solely to Customer that the Zunch Products will not contain any defects in material or workmanship that cause such Zunch Product to fail to function in any material respect when properly operated (the “Product Warranty”) for a period of twelve (12) months from the date of purchase (the “Warranty Period”) by Customer.
(ii) The Product Warranty does not include batteries, the USB charging cables or any other ancillary components.
(iii) Customer’s sole remedy for a breach of the Product Warranty shall be the repair or replacement of the of the non-functioning Zunch Product to Zunch. Customer shall obtain from Zunch a written authorization (“RMA”) before returning any such Zunch Product. Customer will provide a description of the failure to function and other reasonable information to enable verification of the failure and return the nonconforming Zunch Product to Zunch’s designated facility. Customer shall be responsible for all shipping costs to the Zunch’s designated facility except that Zunch shall be responsible for any Chinese import taxes.
(iv) Zunch shall respond to any RMA request within five (5) business days of any such request.
(v) If such Zunch Product is not functioning with the scope of the Product Warranty, Zunch shall, at Zunch’s sole option, repair or replace such Zunch Product within twenty (20) business days of Zunch’s receipt thereof. Zunch shall be responsible for the shipping costs associated with transporting the repaired or replaced Zunch Product to Customer.
(vi) The Zunch Product that was repaired or replaced under the Product Warranty are guaranteed for ninety (90) days from the repair or replacement date, or the remainder of the Warranty Period, whichever is longer.
(vii) In the event that Zunch determines, using customary testing procedures, that the returned Zunch Product is functioning within the scope of the Product Warranty, then Zunch shall not be responsible for the repair or replacement of such Zunch Product and Customer shall be responsible for the shipping costs of the return of such Zunch Product to Customer or its designee.
(viii) Notwithstanding any of the foregoing, the Product Warranty does not extend to (a) non-conformities, defects or errors in the Zunch Product due to accident, abuse, misuse or negligent use of the Zunch Products or use in other than a normal and customary manner, (b) environmental conditions not conforming to Zunch’s product specification, or failure to follow prescribed installation, operating and maintenance procedures, (c) defects, errors or nonconformity’s in the Zunch Product due to modifications, alterations, additions or changes not made in accordance with the Zunch’s product specifications or authorized by Zunch in writing, (d) normal wear and tear, (e) damage caused by force of nature or act of any third person, (f) shipping damage, or (g) service or repair of the Zunch Product by Customer or a later customer, without prior written consent from Zunch.
(b) Product Software.
(i) A limited software warranty is provided with the Product Software purchased directly from Zunch. For a period of ninety (90) days from date of purchase, Zunch warrants that the Product Software will conform to Zunch’s published specifications on date of purchase when properly operated in accordance with the specifications and Documentation.
(ii) Defects in the Product Software will be reported to Zunch accompanied by supporting information reasonably requested by Zunch to verify, diagnose and correct the defect. Zunch’s exclusive obligation and liability with respect to any nonconforming Product Software shall be, at Zunch’s option, (a) to replace that copy of the Software with one that conforms to the specifications, or, (b) to use reasonable diligent efforts to provide the customer with a correction or workaround of the defect. Zunch is under no obligation to provide software updates, which contain additional features and enhancements other than defect corrections.
- Patent and Copyright Indemnity.
(a) Indemnification. Zunch shall, except as otherwise provided in Section 6(c), defend or settle at its own expense any claim made or any suit brought against Customer so far as it is based on an allegation that any Zunch Product (other than certain third party products sold separately by Zunch) or Product Software furnished hereunder infringes a U.S. patent or copyright, if notified promptly in writing and given the information and assistance reasonably requested by Zunch and the sole authority to defend or settle same. Subject to Section 8, if Customer complies with these provisions, Zunch shall pay all damages and costs finally awarded to third parties against Customer. Zunch shall not be liable for any settlement agreed to by Customer without Zunch’s written consent.
(b) Mitigation. In case any Zunch Product or Product Software is or, in Zunch’s opinion, might be held to infringe, Zunch shall have the option, at its own expense, to procure for Customer the right to continue using such Zunch Product and/or Product Software, or replace or modify such Zunch Product and/or Product Software to avoid infringement. If no other alternative is commercially reasonable, Customer may return the affected Zunch Products and/or Product Software to Zunch and Zunch’s sole liability, in addition to its obligation to reimburse awarded damages as set forth in Section 6(a), shall be to refund the amount paid for such returned Zunch Products and/or Product Software.
(c) Exceptions to Indemnification. Notwithstanding the foregoing, Zunch shall have no liability to Customer for claims of patent, copyright or other intellectual property infringement based upon or arising out of: (i)the combination of the Zunch Product and/or Product Software with any hardware, system or other software not provided or authorized in writing by Zunch, if such infringement would not have occurred but for such combination; (ii) modifications of the Zunch Product and/or Product Software without Zunch’s consent; (iii) the use of any Zunch Product and/or Product Software other than in accordance with the specifications or Documentation for such Zunch Product and/or Product Software where the Zunch Product and/or Product Software when used in accordance with the Specifications or documentation would not be infringing; (iv) failure of Customer to use updated Zunch Products and/or Product Software or services, including error corrections and updates, provided by Zunch for avoiding infringement, (v) a patent or copyright in which Customer or affiliate or subsidiary of the Customer has any direct or indirect interest by license or otherwise or (vi) any other claim of infringement where the Zunch Product and/or Product Software, standing alone and as delivered by Zunch, would not have given rise to such claim.
- No Other Warranty.
The Limited Warranties set forth in Section 5 are exclusive and in lieu of all other warranties, and ZUNCH IS MAKING NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ZUNCH PRODUCTS OR THE PRODUCT SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, ZUNCH PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE ZUNCH PRODUCT AND/OR THE PRODUCT SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE ZUNCH WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
- Limitation of Liability.
(a) Zunch’s liability under or for breach of the limited warranties in Section 5 shall be limited to refund of the purchase price actually paid by the Customer to Zunch for the Zunch Product and/or the Product Software.
(b) IN NO EVENT SHALL ZUNCH BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT ZUNCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ZUNCH’S LIABILITY ARISING OUT OF THIS AGREEMENT, THE ZUNCH PRODUCTS, THE PRODUCT SOFTWARE, OR OTHERWISE EXCEED THE MONEY PAID TO ZUNCH FOR THE ZUNCH PRODUCTS OR THE PRODUCT SOFTWARE GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. The essential purpose of this provision is to limit the potential liability of Zunch arising out of the sale and licensing of products and software to Customer whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
(c) THE PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES, AND, ABSENT SUCH ALLOCATION, ZUNCH WOULD NOT BE ABLE TO SUPPLY THE ZUNCH PRODUCTS OR THE PRODUCT SOFTWARE ON THE TERMS SET FORTH HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
- Confidentiality.
Customer agrees, both during the term of this Agreement and for a period of five (5) years thereafter, to hold all information given to it by Zunch that is identified as confidential, and all information concerning the Zunch Products and/or Product Software that is not customarily and publicly available to an end user through use of the Zunch Products or Product Software (collectively, the “”), in confidence, and not to make the Confidential Information available in any form to any third party or to use the Confidential Information for any purpose other than the purposes described in this Agreement. Customer agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of this Agreement, including limiting disclosure to employees or other persons who have a need to know and who are subject to confidentiality agreements with terms no less restrictive than those set forth in this Section 9.
This restriction on disclosure shall not apply to the extent that any Confidential Information (a) is or becomes a part of the public domain through no act or omission of Customer; (b) was in Customer’s lawful possession prior to the disclosure and had not been obtained by Customer from Zunch; (c) is lawfully disclosed to Customer by a third party without restriction on disclosure; or (d) is independently developed by Customer by personnel not having access to the Confidential Information. In addition, Customer may disclose Confidential Information as required by law or court order; provided that (a) Customer provides Zunch with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (b) Customer only discloses such Confidential Information as is required to comply with such order or law and (c) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Agreement.
- Term and Termination.
(a) Term. This Agreement shall commence on the Effective Date and shall continue in effect unless terminated as set out herein.
(b) Termination for Breach. Zunch may terminate this Agreement and the License in the event Customer materially breaches this Agreement and such breach continues for thirty (30) days after receipt of notice from Zunch.
(c) Termination for Convenience. This License may be terminated at any time by Customer by returning or destroying all copies of the Product Software, any related written materials and Documentation and the Data, as certified in writing by an officer of Customer and by notifying Zunch in writing of its termination of the Agreement.
(d) Effects of Termination. In the event of termination of the License, Customer shall destroy or return immediately the Product Software and the Data and all copies thereof to Zunch as certified in writing by an officer of Customer. Customer shall also cease all use of the Zunch Product.
(e) Survival. Upon termination of this Agreement, all of the parties’ respective rights and obligations hereunder shall cease, except that Sections 1, 2(b), 2(e), 3, 6, 7, 8, 9, 10(d), 10(e) and 11 shall survive any such termination.
- General.
(a) Export Restrictions. The Zunch Products, the Product Software, the Data, and related information are subject to U.S. export control laws and regulations, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import laws and regulations in other countries. Customer shall, at its own expense, procure all licenses and other permits, pay all tariffs, customs charges, duties and similar fees, and take all other actions and strictly comply with all applicable laws and regulations required to accomplish the export, re-export and import of the Zunch Products and/or Product Software. Customer shall hold harmless and indemnify Zunch for any damages resulting from a breach of this Section 11(a).
(b) Notice. Any notice required or permitted to be given under this Agreement may be given by email and will be addressed (i) to Customer at the email address provided by Customer when purchasing the Zunch Products and (ii) to Zunch at [john.sanchez@zunch.com].
(c) Force Majeure. Neither party will be responsible for delays and defaults due to war, strikes, fire, acts of God, labor or transportation difficulties, or other causes beyond that party’s reasonable control.
- Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term.
(d) Assignment. Customer shall not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Zunch, and any such prohibited assignment shall be null and void. Zunch may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Customer.
(e) Severability. In the event that any provision of this Agreement is found to be invalid, void or unenforceable, the parties agree that unless such provision materially affects the intent and purpose of this Agreement, such invalidity, voidability or unenforceability shall not affect the validity of this Agreement nor the remaining provisions hereof.
(f) Third-Party Beneficiaries. Customer hereby acknowledges that there may be third-party beneficiaries to this Agreement. To the extent that this Agreement contains provisions that relate to the Zunch Products and/or the Product Software in which such third parties have an interest, such provisions are made expressly for the benefit of such third-party beneficiaries and are enforceable by such third-party beneficiaries in addition to being enforceable by Zunch.
(g) Governing Law. This Agreement shall be governed by the laws of the State of Texas, without regard to its conflict of law principles. The exclusive jurisdiction for any legal action shall be the state or federal courts in Dallan, Texas, U.S.A. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The prevailing party in any suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.
(i) Entire Agreement. This Agreement constitute the entire agreement between the parties on the subject matter hereof and supersedes all prior agreements, communications and understandings of any nature whatsoever, oral or written. This Agreement may not be modified or waived orally and may be modified only in writing signed by duly authorized representatives of each party.
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