ARIAWARE TECHNOLOGIES dba Zerotouch.ai (“Zerotouch.ai” or “we”) PROVIDES ACCESS TO ITS SOFTWARE AND SERVICES SUBJECT TO THE TERMS OF THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (“SLASA”) AND ALL SOWS, ORDERS AND ANY SUBSEQUENT AMENDMENTS (COLLECTIVELY, THE “AGREEMENT”). PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. AS USED IN THIS AGREEMENT, “CUSTOMER” OR “YOU” REFERS TO THE PERSON OR ENTITY USING THE SOFTWARE OR RECEIVING THE SERVICES. YOU ACCEPT THE TERMS OF THIS AGREEMENT EITHER BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) BY INSTALLING OR USING THE SOFTWARE. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THAT INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND THE ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE OR SERVICES.

 

1. Overview. This Agreement sets forth the terms under which you may license and use Zerotouch.ai’s Software and obtain Services (all as defined below) from Zerotouch.ai. This Agreement applies if you obtain Software or Services directly from Zerotouch.ai or through a Zerotouch.ai authorized reseller or MSP. For purchases made through a reseller or MSP, payment and/or renewal terms will be as set forth in the applicable order form as provided by the reseller or MSP. All Software and Services will be identified in an applicable Quote or Order. If you use the Software and Services in a free trial as an Evaluation, this SLASA governs that use.
    

2. Definitions.
   a) ​​      “Affiliate” means any entity (i) that is owned more than 50% by a Party, (ii) over which a Party exercises management control,
   (iii) that is under common control with a Party or (iv) that owns more than 50% of a Party’s voting securities or other voting interests of an entity.
   
   b)      “Confidential Information” means any proprietary or confidential information of any nature disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) in any format. Confidential Information includes all information relating to a Party’s business that has value to a Party and is not generally known to the public, including material non-public information as defined under federal and state securities laws in the United States, proprietary information, and trade secrets. Software, Evaluation, and Customer Content are Confidential Information. Confidential Information also includes information designated as confidential by a Party or information that would reasonably be considered confidential under the circumstances in which it is disclosed. Confidential Information excludes information that (i) lawfully is or becomes part of the public domain through no act or omission of the Receiving Party, (ii) comes into a Party’s lawful possession without restriction on disclosure, (iii) is independently created by a Party without use of or reliance on the other Party’s Confidential Information or (iv) the Receiving Party can show, through its written records kept in the ordinary course of business, was already known by Receiving Party at the time of the disclosure.
   
   c)      “Customer Content” means all Customer data and information uploaded to the Services through your use of the Services, directly or through an MSP’s use of the Services on your behalf. Customer Content may include Personal Data. Customer Content does not include Third-party Content.
   
   d)      “Data Protection Laws” means all applicable data protection, privacy, and cyber security laws, rules, and regulations of any country, including, where applicable, the Regulation (EU) 2016/679, General Data Protection Regulation (“GDPR”), the GDPR as transposed into United Kingdom national law by operation of section 3 of the European Union (Withdrawal) Act 2018 (“UK GDPR”), the Swiss Data Protection Act, data protection laws of the European Union or European Economic Area member states or the United Kingdom that supplement the GDPR or UK GDPR and the California Consumer Privacy Act of 2018 (“CCPA”).
   
   e)     “Device(s)” or “Endpoint(s)” means your physical or virtual hardware device(s), to which your users can upload or access data.
   
   f)      “Documentation” means the user guides, instructions, and other materials, in any form, that describe the capabilities, specifications, and functionality of the Software, as updated from time to time, that we make available to customers on [URL] or otherwise.
   
   g)     “Effective Date” means either the date of the last signature below or the date that you clicked to accept the SLASA.
   
   h)      “Intellectual Property Rights" means all intellectual property or other proprietary rights worldwide, including patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how, moral rights, trade secrets, and all other intellectual or industrial property, including all associated applications, registrations, renewals and extensions of those rights.
   
   i)      “Order” means a purchase order, schedule, or other ordering document issued by you, indicating a promise to pay and acceptance of the then-current Quote. The Order also includes a Quote signed by you, online orders you make through Zerotouch.ai authorized platforms and orders submitted through Zerotouch.ai authorized resellers or MSPs. All Orders are subject to this Agreement and any additional or inconsistent terms included in an Order will not bind Zerotouch.ai and Zerotouch.ai expressly rejects them.
   
   j)      “Performance and Usage Data” means statistical, usage, configuration, and performance data of the Hosted Services and/or Software.
   
   k)      “Personal Data” means any personal data (as defined in applicable Data Protection Laws) submitted by you or by an MSP on your behalf to the Services (or any subprocessor) pursuant to Zerotouch.ai’s provision of the Services to you.
   
   l)       “Quote” means the system-generated offer from Zerotouch.ai that identifies the Software and Services the Customer is ordering, the term length, and applicable fees.
   
   m)    “Services” means those services Zerotouch.ai will provide to Customer, as identified on a Quote, Order or SOW, and may include the services or platform hosted by Zerotouch.ai through which Customers access certain Software, and other optional services that Customer may purchase such as premium cloud offerings, onboarding services, premium support offerings, training services and premium services provided by Zerotouch.ai professional services engineers or Zerotouch.ai-certified partners.
   
   n)      “Software” or “Agent” means Zerotouch.ai’s proprietary applications (a) that may be deployed in your or your Third-party Service Provider’s environment and/or on your Endpoints using your or your Third-party Service Provider’s hardware; (b) that interoperate with the Service; and/or (c) that you may download or to which Zerotouch.ai may provide you with access, and applicable software Updates. Software does not include i) optional plug-ins that add specific features to the Software to enable additional functionality or optional connectors used to connect third-party systems to the Software at the application programming interface level, or ii) Third-party Content.
   
   o)      “Statement of Work” (“SOW”) means a description of the purpose and scope of onboarding services, premium service offerings, or other Services Zerotouch.ai or a Zerotouch.ai certified partner will provide to the Customer.
   
   p)      “Evaluation” means an instance of Zerotouch.ai’s generally available Software and Services provided to you for deployment on and use with Devices for a limited term for trial or evaluation purposes. Evaluations do not include Software versions that Zerotouch.ai has not yet widely released, such as beta, preview, prototype, or release candidate Software. Use of beta, preview, or release candidate versions of the Software is governed by a separate agreement.
   
   q)      “Third-party Content” means any third-party software you deploy in connection with your use of the Software and/or Services and includes Third-Party Patch Materials. Zerotouch.ai does not control and is not responsible for Third-party Content. If you use Third-party Content, your relationship is with the relevant third-party provider and you should refer to the terms of use for that Third-party Content.
   
   r)       “Third-party Patch Materials”
   and maintained by third-party software vendors that Zerotouch.ai does not control. means patches for Third-party Content and related information about patches that are provided
   
   s)       “Third-party Service Provider” means a third-party service provider or contractor that performs outsourced information technology services for your benefit and solely to support your internal business operations.      
   
   t)       “Updates” means minor updates to a version of the Software, major upgrades or new versions of the Software, and other modifications or bug fixes.
   
   u)      “User” means the individual end user of a Device. For calculating user-based licensing, the User does not include end users who access shared devices used by multiple employees (i.e., a shift worker).
   
    

3. Software License. Subject to the terms of this Agreement, Zerotouch.ai authorizes you to access and use the Software via the Services or grants you a non-exclusive, non-sublicensable, non-transferable license to access and use the Software in your own hosted environment or on your Devices, as applicable, in object code form only and/or authorizes you to install and use the Software on your User’s Devices. In all cases, such grant or authorization is only for your internal business purposes and only for the number of Devices or quantity of Users and terms specified in the applicable Order.
    

a)      Usage Limits. Software is subject to the usage limits specified in an applicable Order (e.g., number of Devices or up to the number of authorized Devices per User in any combination of Device types). If you exceed those usage limits, you will order additional quantities of the applicable Software promptly and/or pay any invoice for that excess use in accordance with Section 5 below.     
 

b)      Permitted Use by Affiliates and Third-party Service Providers. You may use the Software and Services for the benefit of your Affiliates in the same manner you are permitted to use the Software and Services under this Agreement. Your Affiliates may also license the Software and purchase Services under this Agreement. You may permit your Third-party Service Provider(s) to access and use the Software as permitted by this Agreement on your behalf and solely to support your internal business operations. We may revoke these authorizations if you or your personnel, Affiliates, or Third-party Service Providers violate this Agreement. You are responsible for your Affiliates’ and Third-party Service Providers’ compliance with this Agreement.
 

c)      Third-party Software. The Software and Services may use or include open-source and third-party software and other copyrighted material. Your use of that software and the Software and Services is subject to any applicable third-party or open-source licenses as set forth within the Software or made available upon your request. The terms and conditions of those third-party licenses will govern your use of that third-party or open-source software. We represent that we have the right and authorization to use and distribute any open-source and third-party software used with the Software and Services or that is embedded in the Software and that any open-source and third-party software we use will not be subject to copyleft or similar software licenses that require any action by you. We will maintain compliance with all applicable open-source and third-party software licenses during the term​​
 

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  4. Services. This Agreement governs Zerotouch.ai’s provision of Services and all SOWs between the Parties.

a)      We will provide industry standard support and maintenance under this Agreement at no additional cost.

b)      We will ensure that all personnel performing Services are properly trained and supervised.

c)      We will not have access to your systems as part of any Services unless the Parties so agree in writing.

d)      You acknowledge that we are not performing creative work or custom software development in connection with any of the Services.

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5.  Evaluations. If you engage in an evaluation of Zerotouch.ai Services and/or Software (“Evaluation”), the following shall apply:
you may (a) implement the Zerotouch.ai Software to conduct an evaluation; and (b) access for use of the Zerotouch.ai Services for a maximum of thirty (30) days (“Evaluation Period”) under this Agreement, and solely for the limited purpose of evaluating Zerotouch.ai Services and/or Software.  Zerotouch.ai’s support in connection with the Evaluation is optional and at Zerotouch.ai’s sole discretion. Upon expiration of the Evaluation Period, unless you have agreed to purchase the Services from Zerotouch.ai, or a Zerotouch.ai authorized reseller or MSP, you must delete and remove all components of the Zerotouch.ai Software from your Endpoints and systems in addition to any other Software components delivered or made available as part of the Evaluation.  You understand that if Zerotouch.ai Software is not uninstalled and removed from your Endpoints after the Evaluation Period expires, then, Zerotouch.ai may charge you the applicable monthly fees associated with the Endpoint(s) as detailed herein. You acknowledge and agree that the Evaluation is only available to you “AS IS” without warranty of any kind, and we disclaim all warranties, indemnities, and all other liabilities associated with your use of the Evaluation. The Evaluation is for non-production use only, and we may terminate your Evaluation at any time by providing you with written notice. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ZEROTOUCH.AI AND OUR AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOU AND YOUR USER'S USE OF THE EVALUATION DURING THE EVALUATION PERIOD AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.

 

6.  Payment Terms. Unless otherwise stated in the relevant Order, all invoices for purchases you make directly from Zerotouch.ai are due and payable net 30 days from the date of invoice. You will pay fees and applicable taxes for the Software and Services as set forth on the applicable Order. If you purchase from a Zerotouch.ai authorized reseller or MSP, payment terms are determined between you and the reseller and you agree that we may share certain information about your account and purchases with that reseller or MSP only as permitted by Section 17 of this Agreement.

 

7.  Customer Obligations, Representations, and Warranties.

a)      You must provide, at your expense and as applicable, an internal network, hardware, Devices, software applications, current operating systems, supported web browsers, and Internet service, all as sufficient or necessary to access and use the Software and Services. If we change applicable technical requirements (which we may in our sole discretion), we will provide you notice of the changes in advance.

b)      You will comply with all requirements imposed by manufacturer(s) to perform mobile device management. Failure to promptly comply with all such requirements may result in your inability to use the Software.

c)      You will implement reasonable safeguards to prevent unauthorized access to or unauthorized use of the Software, Services, and/or Evaluation and you must keep your password(s) confidential, ensure that they are not shared or otherwise disclosed, and control the access you provide to your Users. You are solely responsible for all activities conducted under your account(s).

d)      You will use the Software, Services, and Evaluation only in accordance with the Documentation and this Agreement.

e)      You are responsible for notifying your Users about the Services and obtaining all necessary consent from them. You represent and warrant that you own or have the rights to use Personal Data, Customer Content, and Third-party Content and that you have the necessary permissions and legal authority (including under Data Protection Laws) to provide it to Zerotouch.ai and grant us the rights to use it in connection with our performance under this Agreement.

 
 

8. Restrictions on Use of Services and/or Software. You will not, except as provided in this Agreement:

a)      Copy, reproduce, distribute, transfer, rent, lend, loan, lease, or sublicense any portion of the Software, Services, or Evaluation, or otherwise make the Software, Services, Evaluation, or its features or functionality available to any third party for any reason.

b)      Use or permit the Software, Services, or Evaluation to be used to perform services for third parties, whether on a service bureau, SaaS, time-sharing basis, or otherwise;

c)      Translate, adapt, modify, alter, or combine with other software or services (combine does not mean using the Software in conjunction with other software), or prepare derivative works based in whole or in part on the Software, Services, or Evaluation;

d)      Reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs (except and solely to the extent expressly permitted by applicable law);

e)      Disclose or provide Confidential Information about the Software, Services, or Evaluation to any third party not authorized under this Agreement to use the Software, Services, or Evaluation on your behalf, without our prior written consent;

f)       Alter or remove any proprietary notices from the Software, Services, Evaluation, or Documentation;

g)      Use access to the Software, Services, or Evaluation to develop products, systems or services like or competitive with the Software, Services, or Evaluation or provide access to the Software, Services, or Evaluation to a known competitor of Zerotouch.ai;

h)      Upload any files or Third-party Content that contain viruses or harmful computer code or violates any Intellectual Property Rights or proprietary rights of others to the Services;

i)       Interfere with or unreasonably burden the operation of the Services, including the servers, computers, routers, network, Internet, or software that is part of, or interacts with, the Services or attempt to break, bypass, defeat or circumvent the controls or security measures of the Services and/or any components thereof or any software installed on the Services;

j)       Submit to or store in the Service or Software any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act (“HIPAA”), Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards (“PCI-DSS”); or

k)      Continue to access or use the Software and/or Services after your access or authorization has been terminated or suspended.

 
 

9.  Intellectual Property Ownership.

a)      Customer Content. You own all rights in Customer Content, including Intellectual Property Rights. We obtain no rights, title, or interest of Customer in the Customer Content.

b)      Zerotouch.ai Property. Zerotouch.ai, its Affiliates, or licensors own all rights, including Intellectual Property Rights, in the Software, Evaluation, and Services, including all improvements, modifications, enhancements, and derivative works of them. You obtain no rights, title, or interest of Zerotouch.ai, its Affiliates, or Zerotouch.ai’s licensors in and to the Software, Evaluation, and Services, including any Intellectual Property Rights and industrial property rights.

 

10.  Optional Feedback. You may provide suggestions, recommendations, or feedback about the Software, Evaluation or Services (“Feedback”) to Zerotouch.ai. If you provide us Feedback, we may use it without restriction and you irrevocably assign to Zerotouch.ai all rights, title, and interest in and to that Feedback. Providing Feedback to Zerotouch.ai does not grant Zerotouch.ai any rights in Customer Content or Customer’s Intellectual Property Rights.

 

11. Zerotouch.ai Warranties. We represent and warrant to you that (a) we own or have the right to license the Software and provide access to the Services; (b) the Software and Services will substantially conform to the Documentation; (c) we will perform the Services in a professional and workman-like manner, consistent with industry standards; and (d) we use industry standard scanning technology designed to prevent the introduction of any virus, worm, logic bomb or any other malicious code into the Software or the software underlying the Service and the environment used for the Services. These warranties are void if the Software or Services are modified, combined with other third-party software, systems, or services, or used other than as provided in the Documentation or this Agreement or as expressly approved by us in writing. Your sole remedy and our sole liability for our breach of Section 11(b) or 11(c) will be to replace the Software and/or re-perform the Services. You must make any claim under any warranty within ninety (90) days of the transaction or occurrence giving rise to that warranty.

 
 

12.  Disclaimers. EXCEPT AS SET FORTH IN SECTION 11, WE MAKE NO WARRANTIES REGARDING THE SOFTWARE OR SERVICES. NO ORAL INFORMATION OR ADVICE GIVEN BY US OR A ZEROTOUCH.AI-AUTHORIZED RESELLER WILL CREATE A WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT AGAINST ALL INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR SERVICES, THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT WE WILL CORRECT ALL DEFECTS IN THE SOFTWARE OR SERVICES. WE DO NOT MAKE ANY WARRANTY OR REPRESENTATION THAT THE SOFTWARE OR SERVICES WILL DETECT OR PREVENT ANY SYSTEM ATTACK, THREAT, MALWARE OR VULNERABILITY. WE MAKE NO GUARANTEES AND PROVIDE NO WARRANTY REGARDING THIRD-PARTY CONTENT OR THIRD-PARTY PATCH MATERIALS. THE WARRANTIES ZEROTOUCH.AI PROVIDES IN SECTION 10 DO NOT APPLY TO THIRD-PARTY CONTENT OR THIRD-PARTY PATCH MATERIALS AND ZEROTOUCH.AI DISCLAIMS ALL LIABILITY FOR ANY DAMAGES OR LOSS RELATED TO THIRD-PARTY CONTENT OR THIRD-PARTY PATCH MATERIALS. FURTHER, ZEROTOUCH.AI DOES NOT CONTROL AND IS NOT RESPONSIBLE FOR CONTENT, MATERIALS, OR PRODUCTS FOUND ON THIRD-PARTY WEBSITES THAT ARE ACCESSED BY A USER ON A DEVICE OR ENDPOINT THAT IS USING THE SOFTWARE OR SERVICES.

 
 

13.  Limitation of Liability.

 
a)      TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT FOR DAMAGES ARISING FROM CUSTOMER’S BREACH OF ZEROTOUCH.AI’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST TIME, LOST SAVINGS, LOSS OF DATA OR FOR BUSINESS INTERRUPTION UNDER ANY THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.


b)      IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT OF MONEY PAID BY CUSTOMER WITH RESPECT TO THE SOFTWARE AND/OR SERVICE(S) TO WHICH THEY RELATE IN THE 12-MONTH PERIOD PRECEDING ANY CLAIM. THE MONETARY LIMITATION IN THIS SECTION 12 (B) WILL NOT APPLY TO YOUR BREACH OF OUR INTELLECTUAL PROPERTY RIGHTS, THE PARTIES’ THIRD-PARTY INDEMNITY OBLIGATIONS UNDER SECTION 14, YOUR PAYMENT OBLIGATIONS OR ANY LIABILITY THAT MAY NOT BE EXCLUDED BY APPLICABLE LAW.

 
 

14. Third-party Indemnification.

 

a)      Indemnification by Zerotouch.ai. We will defend you against any third-party claim alleging that your use or possession of the Software or Services in accordance with this Agreement infringes that third-party’s Intellectual Property Rights and we will indemnify and hold you harmless from and against any fines, damages, and costs incurred (including reasonable attorney’s fees) finally awarded against you by a court of competent jurisdiction or agreed to by you in a settlement as approved by us resulting from that third-party claim.

i)       The defense and indemnification obligations in Section 14(a) do not apply if the third-party claim of infringement arises because of your combination of the Software with non-Zerotouch.ai products or software; your modification of the Software made without our written approval; or your use of the Software or Services in violation of the terms of this Agreement.

ii)     If the Software becomes or in our opinion is likely to become the subject of a third-party infringement claim, we will at our option and expense: (1) obtain a right for you to keep using the Software; (2) modify or replace the Software to make it non-infringing without materially reducing its functionality; or (3) terminate the Agreement and refund any prepaid but unused fees.

iii)    Zerotouch.ai’s indemnification and defense obligations in Section 14(a) apply only if you provide us written notice of any claim within a reasonable time after learning of it (provided that any delay in you giving us notice will relieve us of our indemnification obligations if we are prejudiced by the delay) and allow us sole control over the defense of the claim and reasonably cooperate (at our expense) if we ask for assistance. We will not, without your prior written consent, which will not be unreasonably withheld or delayed, settle any claim that obligates you to admit any liability or pay any unreimbursed amounts to the claimant.

iv)    This Section 14(a) states your sole and exclusive remedy and our entire obligation for any intellectual property infringement claims.

 

 

b)   Indemnification by Customer. You will defend us against any claim by a third party that (i) your provision of Customer Content, Third-party Content, or Personal Data to Zerotouch.ai violates that third-party’s Intellectual Property Rights or privacy rights and (ii) you or your Third-party Service Provider’s use of the Software and/or Services in violation of this Agreement violates any third-party Intellectual Property Rights or privacy rights, and you will indemnify and hold us harmless from and against any fines, damages, and costs incurred (including reasonable attorney’s fees) awarded against us by a court of competent jurisdiction or agreed to by us in a settlement resulting from such claims. Your defense and indemnification obligations in this Section 14(b) apply only if we provide you with written notice of any claim within a reasonable time after learning of it (provided that any delay in us giving you notice will relieve you of your indemnification obligations if you are prejudiced by the delay) and reasonably cooperate (at your expense) if you ask us for assistance. You will have sole control over the defense of the claim. You will not, without our prior written consent, which will not be unreasonably withheld or delayed, settle any claim if the settlement obligates us to admit liability or pay any unreimbursed amounts to the claimant or will affect the Software or Services.

 
 

15.    Term, Termination, and Suspension.

 
a)      Term. This Agreement is effective on the earlier of the Effective Date or the date you begin using the Software and/or Services and will remain in effect for the term indicated in an Order or Quote plus any renewal term(s) (unless extended by us in our sole discretion) or otherwise terminated as permitted in this Section 15.

b)      Termination by Customer. You may terminate this Agreement or any Services that you purchase directly at any time by giving us 30 days’ written notice and by paying any outstanding fees for the Software and Services. If you have purchased from Zerotouch.ai authorized reseller or MSP, this Agreement and Services will terminate upon termination of your agreement with such reseller or MSP.

c)      Mutual Termination. Either Party may terminate this Agreement if the other Party fails to cure any material breach of this Agreement (including your failure to pay applicable fees when due) within 30 days of receiving written notice. Either Party may immediately terminate this Agreement if the other Party has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

d)      Services Suspension. We may suspend your access to the Services if we (i) reasonably determine that your use of the Services poses a security risk to, or may adversely impact us, the Software, Evaluation or Services or other Zerotouch.ai customers or (ii) reasonably suspect fraud or abuse related to your use of the Services. We will give you notice before suspending your access if permitted by law or unless we reasonably determine that providing notice could potentially harm Zerotouch.ai, the Software or Services, or other Zerotouch.ai customers. We will restore your access promptly after the issue causing the suspension has been resolved. We may terminate this Agreement and/or your access to the Hosted Services if you fail to cure the issue within 30 days of the suspension notice. You remain responsible for payment during the suspension period.

e)      Services Termination. We may immediately terminate access to the Services with notice to you (i) if our relationship with a third-party service provider that provides servers, software, or other technology that we use to provide the Services terminates or requires us to change the way we provide the Services, (ii) if we believe providing the Services could create a substantial security risk for us, our Affiliates, our service providers or any other Zerotouch.ai customer or (iii) in order to comply with applicable law or requests of governmental entities. We may also suspend or terminate the Services and take defensive action we consider necessary in the event of any third-party attack upon the Services that significantly affects the Services, e.g., a Distributed Denial of Service (DDoS) attack.

f)       Effect of Termination and Return of Back-up. Upon termination for any reason, you will cease using the Software and/or Services and destroy all copies of the Software and Documentation (certifying the destruction) or return them to us, as directed by us. For Services, we will provide you a copy of the most recent backup of your database that is available to us and return copies of any Third-party Content you provided to us, if you request a backup in writing within 20 days after the effective date of termination.

 
 

16.    Compliance with Laws.

 
a)      Each Party will comply with all local, state, federal, and international laws and regulations, including Data Protection Laws, applicable to the actions contemplated by this Agreement.

b)      Each Party will comply with the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, and all other applicable anti-corruption and anti-bribery laws. Neither Party will directly or indirectly offer or give anything of value for the purpose of influencing an act or decision of any government official.

c)      The Services, Software, Evaluation, and other technology we make available, and derivatives thereof, may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any United States government denied-party list nor is a Party owned by entities or individuals named to any United States government denied-party list. You represent and warrant that will not access or use the Software, Evaluation or Services in any United States-embargoed country or in breach of United States or other applicable export laws or regulations.

 
 

17.    Confidential Information.

 
a)      Use and Protection of Confidential Information. In connection with performing their obligations under this Agreement, either Party may provide Confidential Information to the other Party. The Receiving Party will only use the Disclosing Party’s Confidential Information to the extent necessary to perform its obligations under this Agreement and will protect the Disclosing Party’s Confidential Information using the same degree of care it uses to protect its own Confidential Information (but no less than a reasonable degree of care). The Receiving Party will only disclose Confidential Information to its employees, officers, agents, independent contractors, and representatives who have a need to know it to perform obligations under this Agreement and who are subject to confidentiality obligations no less restrictive than those found in Section 17. The Receiving Party may not disclose Confidential Information to a third party, except as allowed or required to perform its obligations under this Agreement, and only if the third party is subject to confidentiality obligations at least as restrictive as those found in this Section 16. The Receiving Party acknowledges that it may receive Confidential Information from the Disclosing Party that constitutes material non-public information as defined by federal and state securities laws and that trading in the securities of the Receiving Party based on that material non-public information may be prohibited by those laws. Without limiting the restrictions of this Agreement in any way, the Receiving Party will not use any Confidential Information in violation of those federal and state securities laws.

b)      Notice of Unauthorized Disclosure. The Receiving Party agrees to immediately notify the Disclosing Party of any misuse, misappropriation, or unauthorized disclosure of Confidential Information that may come to its attention.

c)      Compelled Disclosure. If the Receiving Party is required by applicable law or a valid legal order to disclose any Confidential Information or the fact that such Confidential Information has been made available to the Receiving Party, the Receiving Party will, if permitted by applicable law, give the Disclosing Party reasonable advance written notice of that requirement so that the Disclosing Party may pursue its legal and equitable remedies to prevent or limit the potential disclosure. If the Receiving Party is still required to disclose the Confidential Information, it will only disclose the portion of Confidential Information that it is required to disclose and use reasonable efforts to ensure that the Confidential Information is protected.

d)      Remedies. The Receiving Party acknowledges and agrees that a breach of any of the obligations set forth in this Section 17 will cause irreparable injury and will entitle the Disclosing Party to equitable relief or other remedy by a court of competent jurisdiction. The agreements and remedies provided in this Section are in addition to and are not to be construed as a replacement for, or limited by, the rights and remedies otherwise available under applicable law.

e)      Continuing Obligations. The provisions of this Section 17 will survive for a period of three years from the effective date of termination or expiration of this Agreement for any reason, except for trade secrets for which the obligations will continue for as long as the Confidential Information legally remains a trade secret. The Receiving Party agrees that upon any termination of this Agreement for any reason, the Receiving Party will promptly destroy (certifying to that destruction in writing) or return to the Disclosing Party all Confidential Information including any originals, copies or reproductions in any form and any other information provided to the Receiving Party by the Disclosing Party.

 
 

18.    United States Government Customers. The Software and Documentation are each a “Commercial Item” as that term is defined at 48 C.F.R. §2.101 and Zerotouch.ai licenses them and provides them to U.S. government customers as “Commercial Computer Software” and “Commercial Computer Software Documentation” as those terms are defined at 48 C.F.R. §27.405-3 and 27.404-2(d). If Customer is an agency of the U.S. government, Customer receives only those rights in the Software and Documentation that are granted to all other customers and Users in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to Department of Defense customers and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. government customers and their contractors. If a U.S. government customer seeks greater rights than those granted under this Agreement, then those rights will have to be expressly negotiated and agreed to in writing by the Parties as set forth in the Agreement.

 
 

19.    Data Processing, Collection, and Use.

 

a)      To the extent you provide to Zerotouch.ai personal information of individuals residing in the European Economic Area (“EEA”), you hereby agree that Zerotouch.ai shall be deemed the data processor of such personal information, as those terms are defined under the applicable data protection laws of the EEA (including (i) prior to May 25, 2018, the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, (ii) on and after May 25, 2018, the EU General Data Protection Regulation 2016/679 (“GDPR,” and any applicable national laws made under it), and (iii) where MSP is established in Switzerland, the Swiss Federal Act of 19 June 1992 on Data Protection, as may be amended or superseded.  In its capacity as a processor of Personal Information, Zerotouch.ai shall process such personal information only for the purpose of providing the Services and Software subject to this Agreement, and as otherwise instructed by you.


b)      Customer Content may be hosted by Zerotouch.ai or its authorized third-party service providers in the United States, the EEA, or other locations around the world.

c)      Zerotouch.ai may use de-identified, anonymized, and aggregated Performance and Usage Data to analyze, improve, and develop the Software and/or Services, such as the detection of new security threats.

d)      Zerotouch.ai and its service providers may use de-identified, anonymized, and aggregated Performance and Usage Data and Customer Content during and after the term of this Agreement for any purpose so long as the data or content does not identify the Customer or any individual, including Users. Such anonymized and aggregated data will not be considered Customer Content.

 
 

20.    Choice of Law, Jurisdiction, and Venue.

 
a)      Choice of Law. This Agreement is governed by the laws of the State of Texas in the United States, without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded, will not apply to this Agreement. Article 2 of the Uniform Commercial Code does not apply to the Parties’ relationship.

b)      Jurisdiction and Venue. The sole and exclusive jurisdiction and venue for actions arising under this Agreement will be the federal and state courts located in Austin, TX. Customer agrees to this exclusive venue, to personal jurisdiction of these courts, and to service of process in accordance with their rules of civil procedure and waives any objection that this venue is not convenient.

c)      Injunctive Relief. We may institute an action in a court of proper jurisdiction for injunctive relief at any time.

 
 

21.    General Provisions.

 
a)      Force Majeure. Neither Party will be liable for damages for any delay or failure in performance arising out of causes beyond its reasonable control, including but not limited to, labor strikes, acts of God, epidemic or pandemic, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions or electrical or communications failures.

b)      Publicity. Neither Party may disclose the terms of this Agreement or use the other Party’s name or logo, except for internal purposes or as required by law, without the other Party’s prior written consent. However, we may use your name and logo in a list of Zerotouch.ai customers, including on our website, subject to any use guidelines you provide us.

c)      Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes any prior written or oral agreements or communications between the Parties. This SLASA prevails over any conflicting terms in an Order or Quote, and in the event of a conflict between this SLASA and an SOW, the SLASA prevails.

d)      Amendment. This Agreement may not be amended or modified unless done in writing and signed by both Parties.

e)      Waiver. Either Party’s waiver of a breach of any provision of this Agreement will not operate as or be construed as a waiver of any further or subsequent breach.

f)       Survival. Provisions of this Agreement which by their nature are to be performed or enforced following any termination of this Agreement will survive termination.

g)      Independence. The Parties are independent from each other. This Agreement does not create a partnership, an agency, employment, fiduciary, or joint venture relationship between us for any purpose and neither Party may make commitments on the other’s behalf.

h)      Notice. Except as otherwise expressly provided for with respect to notice of sales leads, any notice, request, demand, or other communication required or permitted in this Agreement will be in writing, will reference this Agreement, and will be effective: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (c) four business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two business days after deposit with an express courier, with written confirmation of receipt. All notices will be sent to the address set forth below or other address for a Party as specified in writing by that Party.

i)       Assignment. We may assign this Agreement to an Affiliate or in connection with a merger or the sale of substantially all our assets.

j)       Reservation of Rights. We reserve all rights not expressly granted to you under this Agreement.

k)      Binding Effect. This Agreement is binding on and inures to the benefit of the Parties, their successors, and permitted assigns.

l)       Unenforceability and Severability. If any part of this Agreement is for any reason held to be unenforceable, the rest of the Agreement remains fully enforceable.

m)    Translations. If this Agreement is translated into languages other than English, only the English version will control.

n)      Headings. The headings are for convenience only and do not affect the interpretation of this Agreement.

o)      Counterparts. This Agreement may be executed by electronic signature and in counterparts, which together constitute one binding agreement.