Ember SLSA

SUBSCRIPTION LICENSE AND SERVICES AGREEMENT

THESE TERMS AND CONDITIONS TOGETHER WITH ANY DOCUMENTS THEY EXPRESSLY INCORPORATE BY REFERENCE (COLLECTIVELY, THE “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN YOU (“LICENSEE”) AND JOHN ZINK COMPANY, LLC. (“JOHN ZINK”). PLEASE CAREFULLY READ THIS AGREEMENT.  BY INDICATING BELOW THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE ENTERED INTO A LEGALLY BINDING AGREEMENT WITH JOHN ZINK.

1. Definitions.

• (a) “Affiliate” means any entity, directly or indirectly, controlling, controlled by, or under common control with, John Zink.
• (b) “Authorized Users” means: (i) Licensee’s employees; and (ii) contractors authorized by Licensee to access the Subscription Software who, prior to obtaining access to the Subscription Software, have executed a non-disclosure agreement with Licensee that protects John Zink’s Confidential Information to the same extent as this Agreement.
• (c) “Confidential Information” means non-public Information that is identified as or would be reasonably understood to be confidential and/or proprietary. Confidential Information of John Zink includes, without limitation, the Documentation and the Subscription Software, including any software code and all algorithms, methods, techniques, and processes revealed or utilized therein. Confidential Information of Licensee includes Licensee Data. Confidential Information does not include Information that: (i) is or becomes known to the public without fault or breach of the Recipient; (ii) the Discloser regularly discloses to third parties without restriction on disclosure; (iii) the Recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation known to Recipient; or (iv) is independently developed by the Recipient without use of Confidential Information.
• (d) “Customizations” means any components deployed in the hosted environment for the Subscription Software other than the generally available Subscription Software or components that Licensee may deploy via the standard user interface or tools included in the generally available Subscription Software.  Customizations may include, without limitation, code, databases or third party extensions that are not included in the generally available Subscription Software.
• (e) “Discloser” means the party providing Confidential Informationto the Recipient.
• (f) “Documentation” means John Zink-provided documentation relating to the features, functions, and use of the Subscription Software.
• (g) “Documented Defect” means a material deviation between the then-current, general release version of the Subscription Software and its Documentation.
• (h) “Effective Date” means the date upon which the Licensee accepts this Agreement by executing the applicable Order Form.
• (i) “EquipmentID” means a unique equipment identification credential used in combination with a unique password to access the Subscription Services.
• (j) “Initial Subscription Term” means the initial subscription period, which will begin on the Effective Date and continue forthe period specified in the Order Form.
• (k) “Intellectual Property Rights” means any and all rights in patents, copyrights, trademarks and service marks.
• (l) “Licensee Data” means information provided, entered or uploaded for use by or with the Subscription Software by the Licensee or its Authorized Users.
• (m) “License Restriction” means any limitation on the use of the Subscription Software identified in an Order Form (e.g., number of Authorized Users, locations, connections).
• (n) “Order Form” means each order form between the parties that incorporates this Agreement by reference, which shall contain, without limitation, a list of the Subscription Software and associated quantity and License Restriction, a description of the Subscription Services, and Subscription Fees.
• (o) “Personal Information”means Information provided to John Zink by or at the direction of Licensee, or to which access was provided to John Zink in the course of John Zink’s performance under this Agreement that: (i) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, e-mail addresses and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, financial account numbers, credit report Information, biometric or health data, answers to security questions and other personal identifiers). Personal Information shall include any non-public personal information regarding any individual that is subject to applicable national, state, regional, and/or local laws and regulations governing the privacy, security, confidentiality and protection of non-public Personal Information.
• (p) “Recipient” means the party receiving Confidential Information of the Discloser.
• (q) “Renewal Term” means any renewal or extension of Licensee’s license to use the Subscription Software following the expiration of the Initial Subscription Term.
• (r) “Residual Knowledge” shall mean ideas, concepts, know-how or techniques related to the Discloser’s technology and Confidential Information that are retained in the unaided memories of the Recipient who had rightful access to Confidential Information.
• (s) “Service Level Description” means the Service Level Description applicable to the Subscription Services (as set forth in Section 5(e)).
• (t) “Subscription Fees” means the fees for the Subscription Services set forth on the applicable Order Form.
• (u) “Subscription Services” means the Subscription Software-related application hosting services and Support (as defined in Section 3(b)) that John Zink provides Licensee under this Agreement.
• (v) “Subscription Software” means collectively or individually the computer software programs identified in the applicable Order Form for which John Zink is providing the Subscription Services.
• (w) “Subscription Term” means the Initial Subscription Term or any Renewal Term, as applicable.
• (x) “Third Party Licensor” means a third party whose software products (“Third Party Products”) have been made available to John Zink for distribution and licensing under the terms of its agreement with John Zink (a “Third Party Agreement”).
• (y) “Updates” means generally available updates, enhancements or modifications to the then-current, general release version of the Subscription Software that are not separately priced or licensed as new products.

2. License. Subject to the terms and conditions of this Agreement and the applicable Order Form, John Zink hereby grants to Licensee a non-exclusive, non-transferable, limited license (without the right to sublease or sublicense) to access and use the Subscription Software and the Subscription Services, during the Subscription Term, in an operating environment hosted by John Zink, for Licensee’s own internal use.  Any rights not expressly granted in this Agreement are expressly reserved.

(a)    Documentation. Licensee may make a reasonable number of copies of the Documentation for the Subscription Software for its internal use in accordance with the terms of this Agreement.

(b)    License Restriction.  Licensee’s use of the Subscription Software and Subscription Services is subject to any License Restriction specified in the applicable Order Form.

(c) Additional Restrictions on Use of the Subscription Software and Subscription Services. In no event shall Licensee access the Subscription Software on any environment outside the hosted environment selected by John Zink as part of the Subscription Services.  In no event shall Licensee or its Authorized Users possess or control the Subscription Software or any related software code. Licensee is prohibited from causing or permitting the reverse engineering, disassembly or de-compilation of the Subscription Software.  Except as expressly provided by this Agreement, Licensee is prohibited from using the Subscription Software to provide service bureau services to third parties.  Licensee will not allow the Subscription Software to be used by, or disclose all or any part of the Subscription Software to, any person except Authorized Users. Licensee acknowledges and agrees that U.S. export control laws and other applicable export and import laws govern its use of the Subscription Software and Licensee will neither export or re-export, directly or indirectly, the Subscription Software, nor any direct product thereof in violation of such laws, or use the Subscription Software for any purpose prohibited by such laws.

(d)    Intellectual Property Rights Notices. Licensee is prohibited from removing or altering any of the Intellectual Property Rights notice(s) embedded in the Subscription Software or that John Zink otherwise provides with the Subscription Services.  Licensee must reproduce the unaltered Intellectual Property Rights notice(s) in any full or partial copies that Licensee makes of the Documentation.

(e)    Ownership. Use of the Subscription Software and Subscription Services does not grant any ownership rights in or to the Subscription Software, the Subscription Services, or the Documentation. Licensee Data shall be the sole property of Licensee.  John Zink will collect data related to Licensee Data or use of the Subscription Software and Subscription Services (collectively “Collected Data”), and such Collected Data (which in no event will include Personal Information) shall be the sole property of Licensee and not considered Licensee Data. Licensee hereby grants John Zink, a fully paid-up,  royalty-free, non-exclusive, world-wide, perpetual right and license to the Collected Data for: (1) use in satisfying its obligations under this Agreement and any Order Form, (2) for use in improving the Subscription Software and Subscription Services, and (3) for distribution outside of John Zink so long as the Collected Data is anonymized.

3. Subscription Services.

(a)    Hosted Environment. John Zink will provide the application hosting environment, including the hardware, equipment, and systems software configuration on which John Zink supports use of the Subscription Software and Subscription Services, on servers located at a facility selected by John Zink.

(b)    Support. John Zink shall (a) provide Licensee with access (via the internet, telephone or other means established by John Zink) to John Zink’s support helpline, (b) install, when and if generally available, Updates; and (c) use reasonable efforts to correct or circumvent any material deviation between the then-current, general release version of the Subscription Software and its Documentation (the foregoing referred to collectively as “Support”).  Support does not include engineering support, which may be the subject of a separate agreement.  Support is included in the Subscription Fee.

(c)    Equipment Accounts. Licensee is responsible for maintaining its own Authorized Equipment, EquipmentIDs and passwords which can be managed through the Subscription Software interface.  Licensee is responsible for maintaining the confidentiality of Licensee’s EquipmentIDs and passwords and shall cause its Authorized Users to maintain the confidentiality of the EquipmentIDs and passwords.  Licensee is responsible for all uses of and activities undertaken with EquipmentIDs registered on Licensee’s account.  Licensee agrees to immediately notify John Zink of any unauthorized use of Licensee’s EquipmentIDs of which Licensee becomes aware.

(d)    Connectivity. John Zink will be responsible for maintaining  connectivity from its network to the Internet which is capable of servicing the relevant Internet traffic to and from the hosted environment.  Licensee is responsible for providing connectivity to the Internet for itself and its Authorized Users. Licensee shall also be responsible for ensuring that latency and available bandwidth from the user’s desktop to John Zink’s hosted routers is adequate to meet Licensee’s desired level of performance. If Licensee requires a VPN or private network connection to the Subscription Services, Licensee is responsible for all costs associated with any specialized network connectivity required by Licensee.

(e)    Restrictions. John Zink shall have no obligation to correct a problem caused by Licensee’s negligence, Licensee’s equipment malfunction or other causes beyond the control of John Zink.

(f)   Customizations.   Customizations are not permitted absent John Zink’s prior written consent.  If permitted, Customizations may only be created and deployed by John Zink, and shall be documented in a separate agreement between John Zink and Licensee.  Support or other services for Customizations are not available under this Agreement or included as part of the Subscription Fees and may only be purchased pursuant to a separate agreement between John Zink and Licensee.

4. Payment and Taxes.

(a)    Payment. Licensee shall pay John Zink the Subscription Fees set forth on the Order Form.  Payment is due net thirty (30) days after receipt of invoice.  Subscription Fees are payable in advance and John Zink will invoice Licensee for Subscription Fees prior to the commencement of the portion of the Subscription Term to which such fees apply. All Subscription Fees will be paid in US dollars unless otherwise specified in an Order Form. After the Initial Subscription Term, the Subscription Fees shall be subject to annual adjustment. Except as otherwise set forth in this Agreement, Subscription Fees are non-refundable.  Licensee will pay each John Zink invoice in accordance with the payment terms set forth on the Order Form.  Late payments are subject to a late charge equal to the lesser of: (i) one and one-half percent (1½%) per month; and (ii) the highest rate permitted by applicable law.  Notwithstanding anything to the contrary in this Agreement,  John Zink reserves the right to suspend access to the Subscription Services in the event of any past due Subscription Fees.

(b)    Taxes. Licensee is responsible for paying all taxes relating to this Agreement (except for taxes based on John Zink’s net income or capital stock).  Applicable tax amounts (if any) are not included in the Subscription Fees set forth on any Order Form.  John Zink will invoice Licensee for applicable tax amounts and such invoices are payable in accordance with the payment terms set forth in the Order Form.

5. Limited Warranties, Disclaimer of Warranties, and Remedies.

(a)    Right to Grant License. John Zink warrants that that it owns all right, title and interest in and to the Subscription Software or has obtained rights in such Subscription Software sufficient to grant the licenses granted to Licensee under this Agreement. Licensee’s exclusive remedy, and John Zink’s exclusive obligation, for a breach of this warranty is set forth in Section 7 (Indemnity).

(b)    No Personal Information.  Licensee warrants that the Licensee Data contains no Personal Information.

(c)    Limited Subscription Software Warranty by John Zink and Remedy For Breach. John Zink warrants that the Subscription Software will operate without a Documented Defect for a period of twelve (12) months from the Effective Date.  John Zink’s sole obligation with respect to a breach of the foregoing warranty shall be to repair or replace the Subscription Software giving rise to the breach of warranty.  If John Zink is unable to repair or replace such Subscription Software within a reasonable period of time, then, subject to the limitations set forth in Section 14 of this Agreement, Licensee may pursue its remedies at law to recover direct damages resulting from the breach of this warranty.  The remedies in this Section 5(b) are exclusive and in lieu of all other remedies, and represent John Zink’s sole obligations, for a breach of the foregoing warranty.  Licensee must provide notice to John Zink of any warranty claim within the warranty period.  For clarity, Licensee’s entitlement to Support (as defined in Section 3(b)) in connection with any Documented Defect shall continue throughout the Subscription Term.

(d)    Malicious Code. John Zink represents that it has used commercially reasonable best efforts utilizing generally accepted industry tools and practices to provide Subscription Software that does not contain any “time bombs,” “worms,” “viruses,” “Trojan horses,” “protect codes,” “data destruct keys,” or other programming devices that are intended to access, modify, delete, damage, deactivate or disable the Subscription Services (“Malicious Code”).  As Licensee’s sole remedy for breach of this representation, John Zink shall take action immediately to investigate, identify and remove such Malicious Code from the Subscription Software.

(e)       Limited Services Warranty and Remedy For Breach. John Zink warrants to Licensee that, John Zink will render the Subscription Services with commercially reasonable care and skill.  John Zink further warrants that the hosted environment will be available at all times throughout the Subscription Term, subject to the exceptions and allowances described in the Availability section of the applicable Service Level Description. The level of unavailability shall not exceed one half of one percent (0.5%) per month, excluding Scheduled Maintenance as described in the applicable Service Level Description (the “Down Time Warranty”).   In the event of a breach of the foregoing warranty John Zink shall apply service level credits based on the actual availability measure for the applicable period as follows:

Availability	Service Level Credit
99.500% or greater	No Service Level Credit
99.499% – 99.000%	5% of the monthly prorated subscription fee
98.999% – 98.500%	15% of the monthly prorated subscription fee
98.499% – 95.000%	25% of the monthly prorated subscription fee
Below 95.000%	35% of the monthly prorated subscription fee

Service level credits for Subscription Fees paid on an annual basis shall be based on a monthly equivalent fee.  For example, a 5% service level credit on an annual subscription fee shall be 5% of 1/12 of the annual fee.  Service level credits shall be applied to Licensee’s next invoice or, if Licensee has paid the final invoice under this Agreement, service level credits shall be paid to Licensee within thirty (30) calendar days following the determination that the credit is due.  The service level credit is the exclusive remedy and is in lieu of all other remedies for breach of the Down Time Warranty.

(f)     Disclaimer of Warranties. The limited warranties in this Section 5 are made to Licensee exclusively and are in lieu of all other warranties. JOHN ZINK MAKES NO OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO THE SUBSCRIPTION SOFTWARE AND SUBSCRIPTION SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR ANY ORDER FORM, IN WHOLE OR IN PART.  JOHN ZINK EXPLICITLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.  JOHN ZINK EXPRESSLY DOES NOT WARRANT THAT THE SUBSCRIPTION SOFTWARE OR SUBSCRIPTION SERVICES, IN WHOLE OR IN PART, WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR MEET LICENSEE’S REQUIREMENTS.

(g)    Abrogation of Limited Warranty. John Zink will have no obligation under this Section 5 to the extent that any alleged breach of warranty is caused by any modification of the Subscription Software not performed by or on behalf of John Zink.  To the extent that an alleged breach of warranty concerns a Third Party Product that is subject to a more limited warranty under a Third Party Agreement than specified in Section 5 above, John Zink’s obligations hereunder will be further limited accordingly.

(h)    Failure of Essential Purpose. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN SECTIONS 5 AND 14 WILL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER LICENSEE HAS ACCEPTED ANY SUBSCRIPTION SOFTWARE OR SUBSCRIPTION SERVICE UNDER THIS AGREEMENT.

(i)     HIGH RISK ACTIVITIES. THE SUBSCRIPTION SOFTWARE MAY BE USED AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF REFINERIES, POWER PLANTS, AND CHEMICAL PLANTS, IN WHICH THE FAILURE OF THE SUBSCRIPTION SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”).  NEVERTHELESS, JOHN ZINK DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.  LICENSEE AGREES THAT JOHN ZINK SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SUBSCRIPTION SOFTWARE IN SUCH APPLICATIONS.

6. Confidential Information.

(a) Confidentiality.  The Confidential Information disclosed under this Agreement may be used, disclosed or reproduced only to the extent necessary to further and fulfill the purposes of this Agreement.  Except as otherwise permitted under this Agreement, the Recipient will not knowingly disclose to any third party, or make any use of the Discloser’s Confidential Information.  The Recipient will use at least the same standard of care to maintain the confidentiality of the Discloser’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but in no event less than reasonable care.  The non-disclosure and non-use obligations of this Agreement will survive in perpetuity with respect to each item of Confidential Information.  Each of Licensee and John Zink shall be shall be responsible for the breach of the confidentiality terms contained in this Section 6 by any of its directors, officers, employees, Authorized Users, agents, accountants and advisors.  Notwithstanding the foregoing, this Section is not intended to prevent (a) a Recipient from using Residual Knowledge, subject to any Intellectual Property Rights of the Discloser, or (b) John Zink from using Collected Data.  If the Recipient should receive any legal request or process in any form seeking disclosure of Discloser’s Confidential Information, or if the Recipient should be advised by counsel of any obligation to disclose such Confidential Information, the Recipient shall (if allowed by law) provide the Discloser with prompt notice of such request or advice so that the Discloser may seek a protective order or pursue other appropriate assurance of the  confidential treatment of the Confidential Information.  Regardless of whether or not a protective order or other assurance is  obtained, the Recipient shall furnish only that portion of the Discloser’s Confidential Information which is legally required to be furnished and to use reasonable efforts to assure that the Informationis maintained in confidence by the party to whom it is furnished.

(b) Security Policies and Safeguards.  John Zink shall establish and maintain administrative, technical, and physical safeguards designed to protect against the destruction, loss, unauthorized access or alteration of Licensee Data in the possession or under the control of John Zink or to which John Zink has access, which are: (i) no less rigorous than those maintained by John Zink for its own information of a similar nature; (ii) no less rigorous than generally accepted industry standards; and (iii) required by applicable laws. The security procedures and safeguards implemented and maintained by John Zink pursuant to this Section 6(b) shall include, without limitation:

(i)     User identification and access controls designed to limit access to Licensee’s Data to authorized users;

(ii)  the use of appropriate procedures and technical controls regulating data entering John Zink’s network from any external source;

(iii)  the use of encryption techniques when Licensee’s Data is transmitted or transferred into or out of the hosted environment;

(iv)   physical security measures, including without limitation securing Licensee’s Data within a secure facility where only authorized personnel and agents will have physical access to Licensee Data;

(v) operational measures, including without limitation IT Service Management (ITSM) processes designed to ensure the correct and secure operations of information processing activities;

(v) periodic employee training regarding the security programs referenced in this Section; and

(vi) periodic testing of the systems and procedures outlined in this Section.

 (c)  Security Incident Response.  In the event that John Zink becomes aware that the security of any Licensee Data has been compromised, or that such Licensee Data has been or is reasonably expected to be subject to a use or disclosure not authorized by this Agreement (an “Information Security Incident”), John Zink shall:  (i) promptly (and in any event within 24 hours of becoming aware of such Information Security Incident), notify Licensee, in writing, of the occurrence of such Information Security Incident; (ii) investigate such Information Security Incident and conduct a reasonable analysis of the cause(s) of such Information Security Incident; (iii) provide periodic updates of any ongoing investigation to Licensee; (iv) develop and implement an appropriate plan to remediate the cause of such Information Security Incident to the extent such cause is within John Zink’s control; and (v) cooperate with Licensee’s reasonable investigation or Licensee’s efforts to comply with any notification or other regulatory requirements applicable to such Information Security Incident.

7. Indemnity by John Zink. John Zink will defend, indemnify and hold Licensee harmless from and against any loss, cost and expense to the extent arising from a third party claim against Licensee that the Subscription Software infringes any Intellectual Property Rights of others. John Zink’s obligations under this indemnification are expressly conditioned on the following:  (i) Licensee must promptly notify John Zink of any such claim; (ii) Licensee must, in writing, grant John Zink sole control of the defense of any such claim and of all negotiations for its settlement or compromise so long as such settlement or compromise does not result in payment of money by Licensee or an admission of guilt by Licensee (if Licensee chooses to represent its own interests in any such action, Licensee may do so at its own expense, but such representation must not prejudice John Zink’s right to control the defense of the claim and negotiate its settlement or compromise); (iii) Licensee must reasonably cooperate with John Zink to facilitate the settlement or defense of the claim.  John Zink will not have any liability hereunder to the extent the claim arises from (a) any modification of the Subscription Software by, on behalf of, or at the request of Licensee; or (b) the use or combination of the Subscription Software with any computer, computer platform, operating system and/or data base management system other than provided by John Zink.  If any Subscription Software is, or in John Zink’s opinion is likely to become, the subject of an Intellectual Property Rights infringement claim, then John Zink, at its sole option and expense, will either: (A) obtain for Licensee the right to continue using the Subscription Software under the terms of this Agreement; (B) replace the Subscription Software with products that are substantially equivalent in function, or modify the Subscription Software so that it becomes non-infringing and substantially equivalent in function; or (C) refund to Licensee the un-used portion of the Subscription Services fee, if any, paid to John Zink for the Subscription Software giving rise to the infringement claim, and discontinue Licensee’s use of such Subscription Software.  THE FOREGOING SETS FORTH JOHN ZINK’S EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
8. Term and Termination.

(a)    Term. With respect to the Subscription Software, the Initial Subscription Term is set forth in Section 1.  After the Initial Subscription Term, the Subscription Term shall renew for successive one-year Renewal Terms, unless either party provides written notice of non-renewal to the other party at least ninety (90) days prior to expiration of the Initial Subscription Term or then current Renewal Term, as the case may be.  Except as set forth in Section 8(b), the Subscription Term cannot be terminated prior to its expiration date.

(b)    Right of Termination. If either party breaches any material obligation in this Agreement or an Order Form (including, without limitation, any obligation to pay Subscription Fees), and fails to remedy such breach (if such breach can be remedied) within thirty (30) days of receipt of written notice of such breach, the other party may terminate this Agreement (including all Order Forms hereunder). Notwithstanding the foregoing, to the extent such material breach cannot be remedied through efforts of the breaching party, the other party has the right to terminate this Agreement (including all Order Forms hereunder) on less than thirty days’ written notice.

(c)    Effect of Termination. Upon termination of this Agreement by either party, Licensee’s license to access and use the Subscription Software and Subscription Services shall immediately terminate as of the effective date of such termination.  Termination of this Agreement will not release either party from making payments which may be owing to the other party under the terms of this Agreement through the effective date of such termination. Termination of this Agreement will be without prejudice to the terminating party’s other rights and remedies pursuant to this Agreement, unless otherwise expressly stated herein.

(d)    Return of Licensee Data. Upon termination or expiration of this Agreement, John Zink shall promptly make all Licensee Data available to Licensee as a native database export provided through John Zink’s FTP server.  In the event that Licensee requires the return of Licensee Data in an alternate format or requires any other termination assistance services, John Zink and Licensee shall mutually agree upon the scope of such termination assistance services and the fees and expenses payable for such termination assistance services.

(e)    Survival of Obligations. All obligations relating to non-use and non-disclosure of Confidential Information, limitation of liability, and such other terms which by their nature survive termination, will survive termination or expiration of this Agreement.

9. Notices. All notices and other communications required or permitted under this Agreement must be in writing and will be deemed given when: delivered personally; sent by registered or certified mail, return receipt requested; transmitted by facsimile confirmed by first class mail; or sent by overnight courier.  Notices must be sent to a party at its address shown on the signature page of the applicable Order Form, or to such other place as the party may subsequently designate for its receipt of notices in accordance with this Section.  Licensee must promptly send copies of any notice of material breach and/or termination of the Agreement to John Zink, Attention: General Counsel or to such other place as John Zink may subsequently designate for its receipt of notices.
10. Force Majeure. Except with respect to the payment of fees hereunder, neither party will be liable to the other for any failure or delay in performance under this Agreement due to circumstances beyond its reasonable control, including, without limitation, Acts of God, war, terrorist acts, accident, labor disruption, acts, omissions and defaults of third parties and official, governmental and judicial action not the fault of the party failing or delaying in performance, or the threat of any of the foregoing.
11. Assignment. Licensee may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of John Zink, whether by operation of law or otherwise, including in connection with a change in control, merger, acquisition, consolidation, asset sale or other reorganization, and any attempt at such assignment or transfer will be void.
12. No Waiver. A party’s failure to enforce its rights with respect to any single or continuing breach of this Agreement will not act as a waiver of the right of that party to later enforce any such rights or to enforce any other or any subsequent breach.
13. Choice of Law; Severability. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without application of any conflict of laws provisions thereof, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Delaware, without application of any conflict of laws provisions thereof. This Agreement is originally written in the English language and the English language version shall control over any translations. If any provision of this Agreement is illegal or unenforceable, it will be deemed stricken from the Agreement and the remaining provisions of the Agreement will remain in full force and effect.  The United Nations Convention on the International Sale of Goods (CISG) shall not apply to the interpretation or enforcement of this Agreement.
14. LIMITATIONS OF LIABILITY.

(a)    LIMITED LIABILITY OF JOHN ZINK. EXCEPT WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, THE TOTAL LIABILITY OF JOHN ZINK, ITS AFFILIATES AND THIRD PARTY LICENSORS IN CONNECTION WITH OR RELATED TO THE SUBSCRIPTION SOFTWARE, THE SUBSCRIPTION SERVICES, OR ANY OTHER MATTER RELATING TO THIS AGREEMENT (WHATEVER THE BASIS FOR THE CAUSE OF ACTION) WILL not EXCEED THE SUBSCRIPTION FEEs PAID OR PAYABLE TO John Zink HEREUNDER FOR THE TWELVE-MONTH PERIOD IN WHICH SUCH LIABILITY FIRST AROSE.

(b)    EXCLUSION OF DAMAGES. IN NO EVENT WILL John Zink, ITS AFFILIATES OR THIRD PARTY LICENSORS BE LIABLE FOR ANY SPECIAL, PUNITIVE,  INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER John Zink HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

15. Audit Rights. John Zink (including any third party auditor retained by John Zink) may audit the records and systems of Licensee to ensure compliance with the terms of this Agreement and each applicable Order Form. John Zink will notify Licensee in writing at least ten (10) business days prior to any such audit.  Any such audit will be conducted during regular business hours and will not interfere unreasonably with Licensee’s business activities.  John Zink may audit Licensee no more than once in any twelve (12) month period.  If an audit reveals that Licensee is using the Subscription Software or Subscription Services beyond the scope of the license granted herein (for example, in excess of the License Restriction), then, in addition to any other remedies available to John Zink, Licensee will promptly pay John Zink the underpaid Subscription Fees associated therewith based on John Zink’s then-current list rates, as well as any applicable late charges.
16. Compliance with Laws. Licensee will comply with all laws, rules and regulations applicable to the use of the Subscription Software and the Subscription Services including, without limitation, by not submitting any Licensee Data that is illegal, defamatory, or that infringes any third party proprietary rights.
17. Entire Agreement. This Agreement contains the entire understanding of the parties with respect to its subject matter, and supersedes and extinguishes all prior oral and written communications between the parties about its subject matter. Any purchase order or similar document, which may be issued by Licensee in connection with this Agreement, does not modify, supplement or add terms to this Agreement.  John Zink may modify this Agreement at any time, in its discretion, upon notice to Licensee and Licensee’s continued use of the Subscription Software constitutes Licensee’s agreement to such modifications. All modifications will become effective upon notice to Licensee, which John Zink may provide by email or by posting a revised version of this Agreement to https://www.johnzinkhamworthy.com/emberslsa and such modifications will only apply to use of the Subscription Software after the date of notice to Licensee. The most recent version of this Agreement is reflected by the version date located at the end of this Agreement.

Version Date: February 2020