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TERMS OF USE

Last updated as on Jan 17, 2024

PLEASE READ THESE TERMS OF USE (" TERMS OF USE”) CAREFULLY. BY CLICKING “ACCEPTED AND AGREED TO” SUBSCRIBER AGREES TO THIS AGREEMENT. 

THIS TERMS OF USE TOGETHER WITH THE ORDER  (DEFINED LATER) (COLLECTIVELY REFERRED TO AS “AGREEMENT”) EXECUTED BY SUBSCRIBER WITH COMPANY CONSTITUTE AN AGREEMENT BY AND BETWEEN WELL ARCHITECTED, INC., HAVING ITS REGISTERED OFFICE AT 1218 E PERSHING BLVD SUITE 4 CHEYENNE, WY 82001, USA, DOING BUSINESS AS (DBA) “ZOPT” (“COMPANY”) AND THE CORPORATION, LLC, PARTNERSHIP, OR ANY OTHER BUSINESS ENTITY EXECUTING THIS AGREEMENT OR THE ORDER (“SUBSCRIBER”). THIS AGREEMENT IS EFFECTIVE AS OF THE DATE SUBSCRIBER STARTS USING THE SUBSCRIPTION UNDER THE ORDER (THE “ORDER EFFECTIVE DATE”). SUBSCRIBER’S USE OF AND COMPANY’S PROVISION OF SOFTWARE, SUBSCRIPTION AND SERVICES ARE GOVERNED BY THIS AGREEMENT. 

SUBSCRIBER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO AND THE COMPANY DOES NOT HAVE ANY LIABILITY TOWARDS VERIFYING THE AUTHORITY OF THE PERSON WHO HAS SIGNED THE AGREEMENT ON BEHALF OF THE SUBSCRIBER.

1. DEFINITIONS 
  1. "Account(s)" means an account generated for Subscriber to use the Subscription and manage its Permitted Users’ accounts during the Subscription Term. For the avoidance of doubt, an Account is specific to Subscriber and under no circumstance may an Account be shared with any third-party.

  2. “Automated Remediation” shall mean automated process offered for purpose of ease of implementation to the Subscriber.

  3. “Company Content” means all content accessible on the Software, which is not Subscriber Content (as definedbelow) including without limitation the Reports (as defined below) and any charts available on the Software.

  4. "Confidential Information" means any non-public, proprietary information that is disclosed or made available by a party (the "Disclosing party") to the other party (the "Receiving party"), whether after the Order Effective Date of this Agreement, that is designated as confidential or proprietary, or that the Receiving party should reasonably understand to be confidential or proprietary given the nature of the information and the circumstances of disclosure, including (a) for Subscriber, all Subscriber Content transmitted to or from, or stored on, the Software; (b) for Company, the Software, including Documentation; and (c) for both parties, any information concerning the Disclosing party products, pricing, business information, marketing strategies, financial affairs, employees, Subscribers or suppliers, information concerning marketing plans, research and development efforts, inventions, trade secrets, requirements, Software (including software provided by third parties), equipment, technology, computing environment, physical and network security, names and other identifying information relating to Subscriber’s and its employees, suppliers, clients or Subscribers (including names and other information related to clients), personal information, price lists, pricing policies, financial information, business methods, processes and procedures, ideas, concepts, techniques, the results of Subscription performed  any other information and data.  Confidential Information does not include any particular information of the Disclosing party that the Receiving party can demonstrate: (i) was in the possession of, or was rightfully known by, the Receiving party without an obligation to maintain its confidentiality prior to receipt from the Disclosing party; (ii) was or has become generally available to the public other than as a result of disclosure by the Receiving party or its agents; (iii) after disclosure to the Receiving party, was received from a third party who, to the Receiving party’s knowledge, had a lawful right to disclose such information to the Receiving party without any obligation to restrict its further use or disclosure; or (iv) was independently developed by the Receiving party without use of or reference to any of the Disclosing party’s Confidential information.

  5. “Documentation” shall mean all and any accompanying documents, content, data, user guides, online help, release notes, training materials, provided by Company to Subscriber along with the Software that describes or supports the use of the Software and Subscription to enable the Permitted Users to use and understand the operations of the Software and Subscription including technical documentation, if any.

  6. “Enhancements” shall mean any modification, update, upgrade, or addition to the Software that, when made or added to the Software or modules currently being used by Subscriber, provides minor functionality enhancements but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Company to all its Subscribers.

  7. “Error(s)” shall mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the Documentation due to any programming defect in the Software, when used by Subscriber as specified under this Agreement or the Documentation. The term “Error”, shall however, not include any failure or inability of the Software that (i) results from the misuse or improper use of the Software, (ii) does not materially affect the operation and use of the Software, (iii) results from any modification to the Software that is not Company authorized change, and (iv) results from any cause beyond reasonable control of Company, including third party cloud environment, hardware,  but not limited to, firmware, malicious code like virus, trojan or malware. 

  8. “Fees” shall mean the monthly fees paid or payable by Subscriber to Company in respect to  availing: (a) the Subscription plan for the Software as set out in https://www.zopt.ai; and (b) any Services as specifically set out in the Order.

  9. “Fixes” shall mean any modification or addition to the Software that, when made or added to the solution or modules currently being used by Subscriber, corrects Errors but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Company to all its Subscribers.

  10. “Intellectual Property Rights” means rights of ownership of any kind of intellectual property, including copyrights, patents, trademarks, service marks, trade secrets, rule sets, and all other intellectual property and all rights therein, and the right to apply for, register, obtain, hold, extend and renew any of the foregoing.

  11. “New Version" shall mean any modification, update, upgrade, or addition that, when made or added to Software, provides major functionality enhancements or changes the overall utility, functional capability, or application. New Versions are generally denoted by major version level (e.g., v1.0 to v1.1 or above) changes, as determined by Company, at no additional cost unless otherwise agreed in the Order

  12. “Order” means an order form that the parties may enter into from time to time under this Agreement, to place an Order for the Subscription, setting forth the description of the Software, Subscription, the Subscription Term start date, the Subscription Term end date, the applicable Fees, any other Services and such other terms as the parties may agree related to the transactions contemplated by this Agreement.

  13. “Permitted Users” shall mean any employees, officers, directors of Subscriber who are authorized by Subscriber to use the Subscription in accordance with the terms of this Agreement.​

  14. “Purpose” shall mean use of the Software and Subscription by Subscriber and its Permitted User for the sole purpose of its internal business use. For clarity, nothing contained in this Agreement grants Subscriber a right to resell, distribute, sublicense the Subscription to any third-party.

  15. “Reports” shall mean the advice, reports, memos, or letters issued by the Company as part of Services or Subscription including without limitation Visualization, Total Forecasted Savings, Total Automatable Savings.

  16. “Services” shall mean any additional services performed or delivered by Company, in addition to the Subscription, under this Agreement and more specifically detailed out in an Order mutually agreed between the Parties.

  17. “Software” means the software programs as identified in the Order and all related Documentation owned and provided hereunder by Company, and any Enhancements hereto.

  18. “Spend Baseline” shall mean Subscriber’s monthly cloud spend for the month of start of the Subscription Term.

  19. “Subscriber Content” means all data, meta data and materials provided and uploaded by Subscriber and its Permitted Users to the Software for use in connection with the Subscription which is stored on the Company’s system, infrastructure or cloud, from time to time.

  20. “Subscription” shall mean a license to use the Software through an Order under which the Software for use to Subscriber and its Permitted Users in accordance with the terms of this Agreement.

  21. “Total Automatable Savings” shall mean total projected monthly or annual cloud cost savings that could be realized using Automated Remediation during the Subscription Term.

  22. “Total Forecasted Savings” shall mean total projected monthly or annual cloud cost savings during the Subscription Term with respect to the Spend Baseline.

  23. “Total Saved Efforts” shall mean total projected person hours of manual efforts saved with Automated Remediation.

  24. “Total Realized Savings” shall mean Total Savings realized by the Subscriber either with manual efforts or using Automated Remediation during the Subscription Term.

  25. “Visualization” shall mean Subscribers historic cloud spend, forecasted spend, cloud infrastructure usage represented using charts and tabular views.

2. ​GRANT OF SUBSCRIPTION AND RESTRICTIONS
  1. Grant of Subscription during Subscription TermSubject to Subscriber and its Permitted User’s compliance with the terms of this Agreement, and Subscriber’s payment of any applicable Fees under Order, Company grants to Subscriber and Permitted User a limited, revocable, worldwide, nonexclusive, non-sublicensable and nontransferable Subscription, during the Subscription Term to access the Software and the Subscription for the Purpose. All Software and Subscription is licensed to Subscriber, not sold. Company reserves all rights not expressly granted in this Agreement, and no rights or licenses shall be deemed or interpreted to be granted or transferred hereunder, whether by implication, estoppel, or otherwise. Subscriber will be solely responsible for the acts and omissions of its Permitted Users and proper usage of the Subscription by its Permitted Users. Company will provide Enhancements and new versions to the Subscription that it generally provides to its other customers, provided that Company will not be obligated to provide to Subscriber any Enhancement or New Versions to the Subscription, or any module thereof, for which Company generally charges a separate fee.

  2. Automated RemediationIn addition, Subscriber further acknowledges that the Company provides an option to the Subscriber to opt for Automated Remediation, without any additional cost. For sake of clarity, Subscriber may schedule, review and execute such Automated Remediation as per Subscriber’s convenience and the Automated Remediation offers option to the Subscriber for reviewing every change before implementation. Notwithstanding anything to the contrary, the Company disclaims any liability with respect to implementation of Automated Remediation within Subscriber’s existing system or environment or infrastructure or any other system or environment or infrastructure. Additionally, the Company will not be held liable if “Automated Remediation” in any manner affects for any impacts the Subscriber’s existing system or environment including without limitation any hardware, software or otherwise any system of the Subscriber. The Subscriber agrees and acknowledges that the Subscriber will use the Automated Remediation for their convenience only after careful review by authorized reviewer and executed only after the approval by the authorized person of Subscriber and the Company takes no responsibility for adverse impact of the automated process for Subscriber’s or any third party’s infrastructure, environment or system, product downtime or outages of their services.

  3. Order: Any Order will be binding only on execution by both the Parties. The Order will be signed between the Parties pursuant to an online signup available at www.zOpt.ai and/ or a work order executed between the Parties.

  4. Restrictions: Subscriber represents, warrants and covenants that it shall not and will ensure that its Permitted Users do not, directly or indirectly: (a) sell, transfer, assign sublicense or in any manner grant access to the Subscription under this Agreement, whether voluntarily or by operation of law, to any third party, directly or indirectly, and any such attempted transfer, assignment or sublicense shall be void; (b) modify, amend, reproduce, republish, decompile, decrypt, disassemble, reverse engineer, create derivative works of or otherwise reduce to human readable form the Software, translate into any language or computer language, re-transmit in any form or by any means, resell or re-distribute the Subscription without the prior written consent of Company; gain access to trade secrets or confidential information in the Software; circumvent any copy-protection or license enforcement; or attempt to do any of the foregoing, except to the extent expressly permitted by applicable law; (c) combine, commingle, or integrate the Software with open source software or third party software or incorporate any open source software or third party software into the Software; copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Software; (d) use the Subscription in any manner to provide time-sharing, benchmarking or other computer services to third parties, except as provided herein, or allow disclosure, benefit or access to any third party from the functionality of the Software including without limitation any results of benchmarking or other testing generated in connection with Subscriber’s use of Subscription, including without limitation any comparisons of the Software with any other products; (e) provide access to third party including without limitation Subscriber’s affiliates other than Permitted Users without prior written consent of Company; (f) remove from the Software (or fail to include in any copy) any readme files, notices, headers, disclaimers, marks or labels; and (g) use or allow use of the Subscription for any purpose other than Purpose specified in the Agreement in violation of any applicable law or regulation or to support or facilitate any illegal activity; (h) upload, transmit or otherwise make available in connection with the Subscription any unsolicited or unauthorized advertising or promotional materials, which by way of illustration but not limitation includes “junk mail“ , ” “spam“, “chain letters” ,  and “pyramid schemes”; (i) upload, transmit or otherwise make available in connection with the Subscription any content that is unlawful, harmful, threatening, abusive, harassing, torturous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (j) upload, transmit or otherwise make available in connection with the Subscription any content that Subscriber does not have a right to make available under all applicable laws, or contractual or fiduciary relationships (which, by way of illustration but not limitation, includes inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (k) upload, transmit or otherwise make available in connection with the Subscription any material that contains virus, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, which by way of illustration but not limitation includes viruses, time bombs, trojan horses and other malware; (l) violate (intentionally or unintentionally) any applicable local, federal or state or international laws or regulations in connection with the Subscription, including but not limited to those related to Intellectual Property Rights, privacy or security. Subscriber shall have no rights to the Software and the Subscription other than as specifically granted herein. All rights not specifically and unequivocally granted to Subscriber, or its Permitted Users are reserved by Company.

  5. Company ContentSubscriber’s rights to the Company Content depend on the terms that Subscriber has agreed in its Order. Subscriber agrees that the Company Content is made available on “as is” and “as available” basis and the access will be only to extent during the Subscription and to extent the Company Content solely uses such Company Content for its internal business purposes. Subscriber understands and agrees that taking screen shots of the Company Content is strictly prohibited. At all times, including when Company permits certain Company Content to be downloaded, Subscriber agrees to use the Company Content solely for its internal business purposes. Further, Subscriber agrees to delete all downloaded Company Content on termination or expiration of this Agreement. In no event may the Company Content be distributed, shared, transferred, sold or leased to any third party, and any attempt to do so will result in immediate termination of this Agreement. Except as set forth above, the Company Content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the prior written permission of Company. Except as otherwise set forth in this Agreement, any use of the Company Content is strictly prohibited. All trademarks, logos, trade dress and service marks included within the Company Content are trademarks or registered trademarks of Company and its licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Company. Unless as otherwise set forth in this Agreement, when Subscriber accesses Subscription, it is allowed to view (but not download, print, copy or transfer in any manner) the Company Content. The Company Content includes the confidential and proprietary information of Company and its licensors and is protected by the U.S. Copyright Act and international treaties, and Company and its licensors owns all copyrights, trademarks, service marks, trade secrets, patents, moral rights, contract rights, and other proprietary rights included therein.

 
3. SUBSCRIBER’S RESPONSIBILITIES
  1. Account Management: Subscriber shall have administrative rights to manage the accounts of its Permitted Users, at its discretion. Subscriber shall be solely responsible for managing its Account and accounts of any of its Permitted User(s) and updating the same from time to time. As a condition for using the Subscription, the Subscriber and the Permitted Users shall be required to register with Company and select a password and enter his/her email address. Subscriber shall ensure that the Permitted Users shall provide Company with accurate, complete, and updated registration information. Subscriber understands that failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Permitted User’s account. It is the primary responsibility of Subscriber to ensure that the Permitted Users use the Software as directed, however, this shall in no manner undermine any authority or rights of Company. Subscriber shall be responsible for maintaining the confidentiality of its Account. Company shall not be liable for any loss of data or functionality caused directly or indirectly by the Permitted Users. 

  2. Compliance with Laws: Subscriber and its Permitted Users shall comply with all applicable local, federal, state, national and foreign laws in connection with its use of the Subscription, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Subscriber acknowledges that Company exercises no control over the content of the information transmitted by Subscriber or the Permitted Users through the Software. Subscriber and its Permitted Users shall not upload, post, reproduce or distribute any information, Software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights. 

  3. Unauthorized Use; False Information: Subscriber and its Permitted Users shall: (i) notify Company immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Company immediately and use reasonable efforts to stop any unauthorized use of the Subscription that is known or suspected by Subscriber, and (iii) not provide false identity information to gain access to the Software or use the Subscription.

  4. Access: Subscriber shall be solely liable for the usage of the Software and the Subscription by all Permitted Users and shall indemnify and save harmless Company from and against any claims in relation to usage of the Software and the Subscription by such Permitted Users. 

  5. System requirements: Subscriber acknowledges that, for accessing and use of the Software and the Subscription, the Permitted Users may be required to use one or more compatible devices, internet services and certain software and may require obtaining updates or upgrades of the Software from time to time. Because the access and use of the Subscription involves hardware, software, and internet access, Subscriber’s ability to access and use of the Subscription may be affected by the performance of these factors.

  6. Subscriber content: Subscriber is solely responsible for all Subscriber Content transmitted on the Software, and for ensuring that Subscriber Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious or (iii) introduce any software viruses or other harmful or deleterious computer code, files, or programs, such as trojan horses, worms, time bombs, or cancelbots. Subscriber acknowledges and agrees that Company uses certain third-party tools for analytical purposes and may use Subscriber Content and track Subscriber’s usage of the Subscription for any purpose including but not limited to research, analytics, and to improve Subscriber’s services. Subscriber acknowledges that, Company will have no obligation to retain any Subscriber Content on the Software. The Customer agrees to delete all Subscriber Content on termination or expiration of this Agreement within a period of ninety (90) days or such longer period if required under law or on account of non-payment of Fees by the Subscriber. 

  7. Usage and configuration metrics: Company, and its third-party service providers that perform Subscription in connection with the Subscription may collect information regarding number of users, number of devices, number of servers, per user storage capacity, aggregate storage usage of Subscriber and may use such information only for Company’s internal business purposes, including to perform its obligations under this Agreement and to ensure compliance with this Agreement.  

4. SERVICES
  1. In addition to the Subscription, upon the Subscriber’s request and in consideration of Fees, the Company will provide the Subscriber the Services in accordance with the terms agreed under the Order , which may be executed between the Parties. Any Orders executed by the Parties for such Services, will be an inherent part of this Agreement and will be governed by the terms and conditions of this Agreement. 
5. OBLIGATIONS OF THE PARTIES
  1. Company’s Obligations

    1. Company will process Subscribers provisioned cloud infrastructure details and cloud usage details at regular intervals during the Subscription Term. 

    2. Company will provide updated Visualization, Total Forecasted Savings, Total Automatable Savings and Total Realized Savings as part of the Report at regular intervals during the Subscription Term.

    3. Company will provide necessary details for each identified saving opportunity for manual implementation and when possible Automated Remediation.

    4. Company will provide additional details for each identified saving opportunity as requested by the Subscriber . In such cases, any questions or queries should be emailed to Company at save.with@zopt.ai

  2. Subscriber's Obligations:
    1. Subscriber will ensure that Company has access to provisioned cloud infrastructure data, continuous replication of cost and usage report, API access to cloud usage details during the Subscription Term.

    2. Subscriber acknowledges that if Company’s access to cloud infrastructure data, cost and usage report, API access to cloud usage is removed, Company cannot fulfill Company’s obligation.

    3. Subscriber will act on each identified saving opportunity in timely manner. The identified opportunities are valid for one (1) week before they are marked expired considering dynamic nature of cloud infrastructure. 

 

6. Reports 
  1. The nature and content of Reports will be limited to the specific scope of Services, and will depend on the extent, completeness, accuracy and timely provision of information or data by the Subscriber.

  2. The Reports provided by the Company: (i) are indicative in nature and are prepared on the basis of the information and data provided by the Subscriber. The Company does not have any obligation to verify the accuracy or correctness of the information or data provided by the Subscriber; (ii) does not form of guarantee that the Company has considered or predicted future events or circumstances; and (iii) are valid for one (1) week from the date of identification and if they are not acted upon by the Subscriber, they will be marked as expired considering the dynamic nature of cloud infrastructure cost and usage.

  3. The Company will not be liable for any obligations between the Subscriber and the third-party software owner including without limitation any delays caused on account of any downtimes or dysfunctionalities in relation to any third-party software. The Subscriber acknowledges and agrees that the Subscription and Services to be provided by Company are dependent on Subscriber providing unrestricted access to cloud cost & usage data and API access to cloud usage data. 

7. ACCEPTANCE

The Subscriber will implement the identified saving opportunities either with manual efforts or using Automated Remediation within 7 days from the date such identified opportunities were published. The Subscriber has opportunities to ask for additional details over email by sending email to save.with@zopt.ai. In case Subscriber does not act within 7 days time period, the identified saving opportunity will be marked as expired and may not be valid for the identified savings. 

8. FEES 
  1. In consideration of the Subscription and Services, the Subscriber shall pay the Fees as per this Agreement.

  2. All Fees are non-refundable and non-cancellable. The Company acknowledges that the performance of the obligations of the Company under this Agreement or Order are conditional upon timely payment of Fees by Subscriber. Late invoices shall be subject to interest of 1.5% per month (or the maximum rate permitted by law if less) plus any expenses of collection. The company reserves the right to suspend and/or terminate access to the Software and the Services if any Fees payable hereunder are past due. Such suspension or termination shall not relieve Subscriber from its obligation to pay all amounts due under this Agreement.

  3. Unless otherwise agreed, the Fees for the invoices shall be due and payable within thirty (30) days from the receipt of the invoice by Subscriber ("Due Date").

  4. All Fees and charges under this Agreement shall be exclusive of taxes. Subscriber acknowledges and undertakes to pay the Fees along with all taxes or duties leviable under applicable law.

 

9. REPRESENTATION AND WARRANTIES; DISCLAIMER OF WARRANTY 
  1. Company warrants that the Software will perform substantially in conformance the Documentation. This limited warranty is void if failure of the Software has resulted from (i) failure to use the Software in accordance with this Agreement or the Documentation, (ii) modifications made by the Subscriber, a Permitted User, or a third party not authorized by Company, (iii) a Force Majeure Event (as defined below), or (iv) any material breach of this Agreement by the Subscriber; or (v) breach of the terms of this Agreement by a Permitted User. In the event of any Error in the Software, the Subscriber’s sole and exclusive remedy, and Company’s entire obligation and liability shall be, at Company’s sole option, to either (i) provide Fixes to the Software, (ii) correct or replace the Software, or (iii) refund the Subscriber, a pro-rated amount of the applicable Fees pre-paid by the Subscriber covering the whole months that would have remained, absent such early termination, in the Subscription Term following the effective date of such early termination, and terminate this Agreement

  2. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, SUBSCRIPTION, SERVICES OR ANY REPORTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THE IMPLEMENTATION OF THE REPORT WILL BE THE SOLE RESPONSBILTY OF THE SUBSCRIBER, WITHOUT ANY LIABILITY ON THE COMPANY. COMPANY HEREBY DISCLAIMS ALL OTHER IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT LOSS OF DATA OR ARISING OTHERWISE IN LAW OR EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED. COMPANY FURTHER DISCLAIMS WARRANTIES THAT THE SOFTWARE, THE SUBSCRIPTION AND THE SERVICES WILL MEET SUBSCRI’ER'S OR PERMITTED U’ER'S REQUIREMENTS OR SPECIFICATIONS OR THE SOFTWARE, THE SUBSCRIPTION AND THE SERVICES WILL BE COMPATIBLE WITH SUBSCRI’ER'S INFRASTRUCTURE, THAT THE OPERATION OF THE SOFTWARE, THE SUBSCRIPTION AND THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY BUGS OR ERRORS OR DEFECTS WOULD BE FIXED OR THE SOFTWARE WILL OPERATE IN COMBINATION WITH SUBSCRI’ER'S CONTENT OR SOFTWARE, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY COMPANY. ALL SPECIFICATIONS, DOCUMENTATION, INFORMATION, AND OTHER MATERIALS PROVIDED BY COMPANY TO SUBSCRIBER ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING ANY STATUTORY WARRANTIES THAT MAY APPLY TO SUCH SPECIFICATIONS, DOCUMENTATION, INFORMATION OR MATERIALS. SUBSCRIBER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING, THE INTERNET, AND THAT THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THE SUBSCRIBER AGREES THAT THE COMPANY WILL NOT BE LIABLE FOR ANY OBLIGATIONS BETWEEN THE SUBSCRIBER AND THE THIRD PARTY SOFTWARE OWNER INCLUDING WITHOUT LIMITATION ANY DELAYS CAUSED ON ACCOUNT OF ANY DOWNTIMES OR DYSFUNCTIONALITIES IN RELATION TO ANY THIRD PARTY SOFTWARE. FURTHER, THE SUBSCRIBER AGREES TO PROVIDE UNRESTRICTED ACCESS TO CLOUD COST & USAGE DATA FOR THE SUBSCRIPTION TERM AND THE COMPANY’S PERFORMANCE IS DEPENDENT ON SUCH ACCESS PROVIDED TO THE COMPANY. 

 

10. INTELLECTUAL PROPERTY RIGHTS 
  1. Any and all ownership rights to the Software, Subscription, Reports or deliverables, Documentation, Enhancements, new versions, and branding thereof, including Intellectual Property Rights therein is the sole and exclusive property of Company. This Agreement does not grant Subscriber or any Permitted Users any rights, title, and interest in and to Software, Subscription, Documentation, Enhancements, New Version, its contents, and branding thereof, except where expressly and unequivocally licensed herein. Any rights not expressly and unequivocally granted to Subscriber are reserved.  

  2. Notwithstanding anything in this Agreement to the contrary, Subscriber shall be the sole and exclusive owner of all Subscriber Content, and all Intellectual Property Rights related therein.  

  3. Each party agrees to execute, and cause its employees, agents, or representatives, and in the case of Company, its personnel, and Subcontractors, to execute any documents or take any other actions as may be reasonably necessary or as requested by the other party, to perfect each party’s respective ownership rights.

  4. Subscriber agrees that Subscriber and its Permitted Users shall not assert, or authorize, assist, or encourage any third party to assert, against Company any infringement or misappropriation of Intellectual Property Rights related claim regarding the Software, Subscription, Services, Documentation or Enhancements.

 

 

11. PRIVACY AND SECURITY

Company states that it endeavors to protect the privacy of Subscriber and its integrity and security of the personal information. The personal information collected by the Company is subject to and governed by our Privacy Policy located at https://www.zopt.ai/privacy-policy. Subscriber understands and agrees that by using the Subscription, Subscriber and its Permitted Users have consented to the collection, use and disclosure of the personally identifiable information and aggregate data as set forth in the Privacy Policy, and to have Subscriber’s or its Permitter Users’ personally identifiable information collected, used, transferred to, and processed.

12. CONFIDENTIALITY
  1. Each party agrees that all Confidential Information obtained by such party, its directors, officers, and other employees, and any third party with which it contracts, is and shall be considered confidential and proprietary to the Disclosing party.  

  2. The Receiving party agrees that it shall use the Disclosing party’s Confidential Information solely in the performance of its obligations and shall not disclose the Disclosing party’s Confidential Information to any person except that the Receiving party may disclose such Confidential Information:

    1. to its employees, agents, subcontractors, representatives and service providers provided that such persons or parties have a need to know the Disclosing party’s Confidential Information to perform their duties to the Receiving party in connection with this Agreement, and further who are otherwise under a duty of confidentiality to the Receiving party or have entered into a written agreement with the Receiving party that contains confidentiality measures at least as stringent as those stated in this Agreement; and

    2. to governmental or regulatory authorities having jurisdiction over such party or as required by law. In the event that the Receiving party receives a court Order, discovery demand or subpoena requiring it to divulge the Disclosing party’s Confidential Information, it shall, unless prohibited, promptly notify the Disclosing party of such requirement so that the Disclosing party may seek a protective Order.

  3. The Receiving party shall protect the confidentiality and integrity of the Disclosing party’s Confidential Information using the same degree of care that it uses to protect its own similar information, but in no event less than reasonable care.

  4. Upon termination of this Agreement, or upon request of the Disclosing party, the Receiving party shall return the Disclosing party’s Confidential Information or destroy the same and certify its destruction in writing. 

  5. In addition to any other rights the Disclosing party may have under this Agreement or at law, since unauthorized use or disclosure of Confidential Information may result in immediate and irreparable injury to Disclosing party for which monetary damages may not be adequate, in the event that the Receiving party uses or discloses, or is likely to use or disclose, Confidential Information in breach of the Receiving party’s obligations under this Agreement, the Disclosing party shall be entitled to equitable relief, including temporary and permanent injunctive relief and specific performance. The confidentiality obligations shall survive for a period of (2) two years post termination/expiry of the Agreement. 

13. INDEMNITY

Subscriber agrees to indemnify, keep indemnified, defend (at Company’s option) and hold harmless Company and its respective directors, officers, employees, representatives, from and against any and all claims and resulting losses, costs, liabilities, and expenses (including reasonable attorney’s fees), arising as a result of or in connection with: (a) Subscriber’s or its Permitted Users’ breach of or violation of applicable laws and regulations, (b) use by Subscriber or its Permitted Users of the Software and/or Services other than as permitted under this Agreement; (c) any acts or omissions and negligence or misconduct on part of the Permitted Users; (d) a third party claim for infringement or misappropriation based upon Subscriber’s combination or use of the Software and/or deliverables  and/or Subscription with, services, or products developed by Subscriber or third parties or any Subscriber Content; (e) use of Software and/or Subscription and/or Services other than as permitted under this Agreement. The provisions of this section shall survive the expiry or termination of this Agreement.

 

 

14. LIMITATION OF LIABILITY

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY OR HOWSOEVER CAUSED IN CONNECTION WITH THIS AGREEMENT EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF COMPANY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)) HEREUNDER FOR ALL DIRECT DAMAGES, UNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE EXTENT OF THE FEES PAID TO COMPANY BY SUBSCRIBER UNDER AN APPLICABLE ORDER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT PURSUANT TO WHICH THE CLAIM AROSE. THE FOREGOING LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES IN THIS SECTION FORM AN ESSENTIAL BASIS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN.

 

15. TERM AND TERMINATION 
  1. Term of the Agreement: This Agreement commences on the Order Effective Date and continues during Subscription Term (“Term”). The Subscription for the Software is granted to the Subscriber for a subscription period subscribed by the Subscriber through an applicable Order, unless the Order is terminated in accordance with this Agreement ("Subscription Term")

  2. TerminationEither party may terminate this Agreement if:

    1. the other party commits a material breach of the provisions of this Agreement and fails to cure such breach within the 30 (thirty) days’ of being notified of such breach by the non-breaching party.

    2. the other party becomes insolvent or bankrupt, makes an assignment for the benefit of its creditors, enters into a composition with its creditors generally, or if a receiver or trustee is appointed over the entire property and assets of the other party. 

  3. Company shall be entitled to immediately terminate this Agreement if Subscriber breaches the terms of Clause 2 (Grant of Subscription) of this Terms of Use , to the sole discretion of Company.

  4. Consequences of Termination: Upon the expiry or any termination of the Agreement:

    1. the rights and Subscription granted to Subscriber hereunder shall immediately and automatically cease to be in effect. 

    2. Any amount owed to the Company by Subscriber before termination of this Agreement shall become immediately due and payable by Subscriber.

    3. The termination of this Agreement shall not relieve any party of its obligation or liability accrued prior to the date of termination.

    4. The termination of this Agreement pursuant to any of the provisions of this Agreement shall not limit or otherwise affect any other remedy (including a claim for damages) that the terminating party may have arising out of the event that gave rise to the right of termination. 

16. ADVERTISING OR PUBLICITY

Company reserves the right to display any advertising, publicity releases, promotional or marketing correspondences, attribution, links, promotional and/or distribution rights ("Promotion Material”) in connection with Subscriber logos, nature of Services, without disclosing any Confidential Information or Subscriber Content or Subscriber name. Company will be entitled to retain any and all revenue generated from any sales or licenses of such Promotion Material.

17. THIRD PARTY LINKS

From time to time, the Subscription may contain links to web sites that are not owned, operated, or controlled by Company. All such links are provided solely as a convenience to Subscriber and Permitted Users. If Subscriber and Permitted Users use these links, the Subscriber and Permitted Users will leave the Subscription. The Company is not responsible for any content, materials or other information located on or accessible from any other web site. Further, the Company does not endorse, guarantee, or make any representations or warranties regarding any other web sites, or any content, materials or other information located or accessible from any other web sites, or the results that Subscriber or its Permitted Users may obtain from using any other web sites. 

18. PARTNERS

In some cases, the Company may engage with a third-party partner (“Partner”) with another company to co-promote their services within the Company’s Subscription or Services. In these cases, the Subscriber is transacting directly with a Partner and will be bound Partner’s brand and their terms and conditions, without any liability on the Company.

19. INTERPRETATION

The headings, titles, and captions contained in this Agreement are merely for reference and do not define, limit, extend, or describe the scope of this Agreement or any provision herein. Unless the context requires otherwise, (a) the gender (or lack of gender) of all words used in this Agreement includes the masculine, feminine, and neuter, and (b) the word "including" means "including, without limitation”.

 

 

20. FORCE MAJEURE

Except for Subscriber’s payment of Fees and/or additional payment obligation under this Agreement neither party shall be liable to the other for any loss or damage resulting from any cause beyond its reasonable control (a "Force Majeure Event") including, but not limited to, insurrection or civil disorder, riot, war or military operations, national or local emergency, acts or directives of government or other competent authority, compliance with any statutory obligation or executive Order, pandemics, lockdowns, any Act of God, fire, lightning, explosion, flood, earthquake, epidemics,  or other similar force beyond such party's reasonable control. Except for Subscriber’s payment of Fees, upon occurrence of a Force Majeure Event and to the extent such occurrence interferes with either party's performance of this Agreement, such party shall be excused from performance of its obligations during the first three months of such interference, provided that such party uses best efforts to avoid or remove such causes of non-performance as soon as possible. 

 

21. SEVERABILITY

If any provision of this Agreement is determined to be invalid, illegal or unenforceable in any respect, including because of the duration thereof, the area covered thereby, or the types of activities restricted thereby, by a court of competent jurisdiction (i) the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, and (ii) the court of competent jurisdiction making such determination shall have the power to reduce the duration and/or area of such provisions or types of activities restricted and/or to delete specific words or phrases and in its reduced form such provision shall then be enforceable. The parties may acting in good faith adopt any and all actions required to cause such invalid, illegal and unenforceable provision to be valid and enforceable, or, alternatively, to reach an agreement in relation to said null provision whereby each of the party receives, as far as possible, substantially the same benefits and obligations based on valid provisions, provided that the Agreement is not enforced in a form that materially affects the commercial agreement between the parties.

 

22. ASSIGNMENT AND DELEGATION

Subscriber may not assign this Agreement without the prior written consent of Company. Company may assign this Agreement in conjunction with the sale of substantial assets, divestiture, merger, or amalgamation, or to its affiliate, and may delegate or subcontract its duties. Any unauthorized assignment of this Agreement is void.

 

23. WAIVER

Failure to exercise, or any delay in exercising, any right or remedy provided under this Agreement shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.

 

24. GOVERNING LAWS AND DISPUTE RESOLUTION 

This Agreement shall be construed and governed by and in accordance with the laws of New Jersey. The Parties shall resolve any difference or dispute arising out of this Agreement by way of negotiations. If such negotiation process fails, then all disputes arising from or related to this Agreement shall be resolved by arbitration presided by a mutually appointed sole arbitrator as per the Rules. The seat of arbitration will be in New Jersey. The arbitration proceedings will be in English language and in accordance with the provision of the American Arbitration Association and the associated rules, as amended from time to time ("Rules”). The cost of the arbitration proceeding, including reasonable attorney’s fees for all Parties, if there are any, shall be paid by the non-prevailing Party(ies) as determined by the arbitral tribunal.  

 

25. AUDIT

The Company shall be entitled to, on itself or through its representatives, auditors, or agents remotely inspect, examine, audit Subscriber’s use of the Subscription to ensure the compliance with terms of this Agreement. Subscriber shall promptly co-operate with the Company’s internal or external auditors to allow a prompt and accurate audit of the Subscriber’s use of the Subscription and provide records and data as may be required by Company. Subscriber shall also co-operate in good faith with the Company and shall correct any practices, which are found to be deficient as a result of any such audit within a reasonable time after receipt of Company’s or their auditor’s audit report. If any deviations or defaults are found, Subscriber shall bear the expense of such audit.

 

26. SURVIVAL

If this Agreement is terminated in accordance with the terms hereof, this Agreement shall become void and of no further force and effect and none of the parties shall have any right or obligation or liability to the other parties under this Agreement, provided however that, the provisions of  section 6, 7, 8, 9, 11, 12, 13 (4), 15, 16, 17, 19, 20, 24, 25, 26 and 28  shall survive the termination of this Agreement without limit in time.

 

27. INDEPENDENT CONTRACTOR

The parties are independent contractors and none of their personnel or subcontractors are agents, representatives, or employees of any other party. No party owes a fiduciary duty to any other party.  No party shall have the authority to bind or make any representations on behalf of any other party, and no party shall hold itself out as such or knowingly permit another to rely on such belief.

 

28. NON-SOLICITATION

Either party agrees that it will not, nor will it cause or permit its affiliates to, during the Subscription Term of this Agreement and for a period of one year after the termination or expiration of this Agreement, directly, solicit the services of (for employment, consulting or otherwise), accept the services of, or employ or engage any person who is now employed by the other party or any of its affiliates and with whom the party  has had contact as part of its business relationship with the other party.

 

 
29. NON-COMPETE

Subscriber understands, agrees, and acknowledges that Subscriber shall not use the Subscription in any manner to assist or take part in, and/or shall not on its own, undertake the development, marketing, or sale of a product potentially competitive with the Software.

 

30. ORDER OF PRECEDENCE

If there is any conflict between an Order and the Terms of Use , then the following order of precedence will be followed: (a) Terms of Use; and (b) Order to the extent that the Order expressly states that it modifies any specified provisions in Terms of Use. 

 

31. NOTICES

Any notice required or permitted to be given under this Agreement shall be in writing, by hand delivery, commercial overnight courier or registered to the addresses stated below for the parties or in the case of email, sent to the email address nominated in writing by the parties.

 

TO COMPANY

Attn.     : zOpt Support team

Address :

Email    : save.with@zopt.ai

TO SUBSCRIBER

Attn.     :

Address :

Email    :

Any change to the abovementioned address shall be informed within ten (10) days of such change.

 

32. ANTI-TERRORISM, ANTI-MONEY LAUNDERING, ANTI-CORRUPTION AND SANCTIONS COMPLIANCE

Both Parties represent and warrant that (a) they nor any person or entity that directly or indirectly owns an interest in it nor any of their officers, directors, or managing members is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control ("OFAC") of the Department of the Treasury (including those named on OFAC's Specially Designated and Blocked Persons List) or under any statute, executive order (including Executive Order 13224 (the "Executive Order") signed on September 24, 2001 and entitled "Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism"), or other governmental action, (b) its activities do not violate the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 or the regulations or orders promulgated thereunder (as amended from time to time, the "Money Laundering Act") and Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the "Patriot Act"), and (c) throughout the term of this Agreement and on expiry or termination hereof, it shall comply with the Executive Order, the Money Laundering Act, and the Patriot Act. Parties further represent and warrant that it is in compliance, and will remain in compliance, with (i) the U.S. Export Administration Regulations administered by the Bureau of Industry and Security, Department of Commerce ("BIS"), and any other export and import laws that may be applicable to this Agreement; (ii) all applicable Bank Secrecy Act ("BSA") laws, regulations and government guidance on BSA compliance and on the prevention and detection of money laundering violations; and (iii) all laws, rules, and regulations of any jurisdiction applicable to it concerning or related to bribery or corruption (the "Anti-Corruption Laws"), including the U.S. Foreign Corrupt Practices Act (the "FCPA")and the U.K. Bribery Act 2010.

 

33. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the parties and supersedes any prior understanding or representation of any kind including but not limited to any agreements or terms and conditions preceding the date of this Agreement, and may not be amended, supplemented, varied, or otherwise changed except in writing through mutual agreement of the parties. There are no other promises, conditions, understandings, or other agreements, whether oral or written, relating to the subject matter of this Agreement. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set out in this Agreement. This Agreement may be modified in writing specifically referencing this Agreement and any such modifications must be signed by both the parties. Standard terms and conditions of a purchase Order or an invoice or any similar document whether hosted on party’s website or otherwise shall be ineffective.

 

 
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