These Terms of Service help define Zenable’s relationship with you as you interact with our website, services, and product offerings. Understanding these terms is important because, by accessing or using our services (whether you’re signed in to a Zenable account or not), you’re agreeing to these terms.
Besides these terms, we also publish a Privacy Policy. We encourage you to read it to better understand how you can update, manage, export, and delete your information. Throughout these Terms of Service, we will refer to you as “Subscriber” and Zenable, Inc. with offices located at 651 North Broad Street, Suite 201, Middletown, DE 19709 as “Licensor.” For purposes of these Terms of Service, Subscriber and Licensor each will be referred to individually as a “Party” and together as “the Parties.”
For valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions.
(a) "Agreement" shall mean these Terms of Service, any Order Form, and any written amendments signed by or otherwise consented to by both Parties;
(b) "Application" shall mean the Licensor-developed application used by Subscriber for the Service hereunder;
(c) "Authorized Users" shall mean Subscriber's employees and independent contractors working for Subscriber in the ordinary course of Subscriber's business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorized by Subscriber to access the Service;
(d) "Billing Start Date" shall mean the date identified on the Order Form as the date from which billing shall be calculated (which under no circumstances shall be later than the Service Start Date, as defined below);
(e) “Data Privacy and Security Laws” means all applicable laws, statutes, ordinances, regulations, rules, executive orders, and/or other requirements, in any jurisdiction (within the United States or otherwise) and at any level (i.e., federal, state, regional, territorial, and/or local), promulgated by any applicable authority in respect of the privacy, data protection, and/or security of Personally Identifiable Information, and/or in respect of any security breach notifications related to Personally Identifiable Information.
(f) "Display Devices" shall mean any display device used to access and display the Service;
(g) "Service" shall mean Licensor's applications subscribed to by Subscriber hereunder;
(h) "Service Start Date" shall mean the date from which Subscriber receives the applicable Service;
(i) "Fees" shall mean the fees payable pursuant to Section 3. hereof;
(j) "Office" shall mean the address(es) of Subscriber's office(s) in which a Display Device is located;
(k) "Order Form" shall mean any order form that sets out the commercial terms or other means by which Subscriber chooses desired features and pricing;
(l) “Personally Identifiable Information” means any information relating to an identified or identifiable natural person, including “Personal Data” as defined in the EU General Data Protection Regulation (Regulation (EU) 2016/679), “Personally Identifiable Information” as defined in the California Consumer Privacy Act of 2018 (Cal. Civil. Code §§ 1798.100-1798.199), and “Non-Public Personal Information” as defined in Title V of the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338), all as may be amended from time to time.
(m) "Term" shall mean the period identified in the Order Form, or any renewal term, as applicable;
2. License to Receive the Service.
(a) Grant. Licensor hereby grants the Subscriber a limited, nonexclusive and non-transferable license, without right of sublicense, during the Term to access, to display on Subscriber's Display Devices within the United States, the Service, and to permit Authorized Users to use the Service, subject to the terms and conditions of this Agreement. All rights in the Service not expressly granted hereunder are reserved to Licensor.
(b) Scope. The license granted to Subscriber hereunder is solely for Subscriber's internal business purposes and is limited to the access, display, and use of the Service by only an Authorized User. Each Authorized User may access, display, and use the Service on only one Display Device at a time. Subscriber shall have no right pursuant to this Agreement to access, use, display, or distribute the Service, in whole or in part, beyond the number of Authorized Users identified on the applicable Order Form. Subscriber may add additional Authorized Users by either executing a new Order Form or amending an existing Order Form. Subscriber is responsible for all activities that occur under Subscriber's and any Authorized User's accounts. Subscriber will: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all use of the Service by Subscriber and any Authorized User; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Licensor promptly after becoming aware of any such unauthorized access or use; and (c) comply with all applicable local, state, federal, and foreign laws in using the Service. Subscriber shall have no right pursuant to this Agreement to distribute the Service in whole or in part over the internet, or via email or instant messaging (other than as set forth in Section 6.), via an intranet, personal digital assistant, wireless application protocol, short message service or radio system. Nothing in this Agreement shall obligate Licensor to continue providing access to any Service beyond the date when Licensor ceases providing such Service to subscribers generally.
(c) Restrictions on Use. Licensor may throttle Subscriber sending or connection through Licensor’s API at Licensor’s discretion. Competitors of Licensor are not permitted to use any Service. A “Competitor” includes any person or entity which provides, offers or sells products and/or services substantially similar to those provided by Licensor or its subsidiaries. Subscriber shall not edit, alter, abridge or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to:
(i) reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service, except as may be authorized as part of participation in Licensor’s bug bounty program;
(ii) modify, translate, adapt, alter, or create derivative works from the Service;
(iii) copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Service;
(iv) distribute, sublicense, rent, lease, loan, or grant any third party access to or use of the Service.
(v) access, tamper with, or use non-public areas of the Service, Licensor’s websites or computer systems, or the technical delivery systems of Licensor’s providers;
(vi) probe, scan, or test the vulnerability of any system or network or circumvent any security measure, except as may be authorized as part of participation in Licensor’s bug bounty program;
(vii) access or search the Service or Licensor’s websites or computer systems by any means other than Licensor’s publicly supported interfaces (for example, “scraping”); or
(viii) interfere with or disrupt, or attempt to interfere with or disrupt, Licensor’s infrastructure or the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, mail-bombing the Service or Licensor’s websites, or by scripting the creation of user content;
(ix) prompt or otherwise attempt to use artificial intelligence (AI) models to act in a manner that violates this Agreement or intentionally circumvents safety filters and functionality of the Service.
(x) use the Services or Licensor’s websites to carry out, promote or support:
(1) any disinformation, deception, or otherwise fraudulent activities;
the impersonation of another person or entity or the misrepresentation of an affiliation with a person or entity (e.g., “spoofing”, “phishing”);
(2) activities that are defamatory, libelous or threatening, or otherwise constitute hate speech, harassment, or stalking;
(3) the violation of any law or the rights of others (including unlawful tracking, monitoring, and identification or the publishing or sharing of another person’s confidential or personal information without their express authorization and permission);
(4) for harm or abuse of a minor, including grooming and child sexual exploitation;
(5) the sending of unsolicited communications, promotions advertisements, or spam;
(6) the publishing or sharing of malicious content;
(7) the promotion or advertisement of products or services other than your own without appropriate authorization; or
(8) the development of services that compete with Licensor;
(xi) post any content on the Service or Licensor’s websites (or otherwise make use of the Service or Licensor’s websites) in a manner that:
(1) is deceptive, fraudulent, illegal, obscene, defamatory, disparaging, libelous, threatening, or pornographic (including child pornography, which, upon becoming aware of, we will remove and report to law enforcement, including the National Center for Missing and Exploited Children);
(2) suggests any content, information or other outputs generated by AI are human generated;
(3) criticizes others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition;
(4) contains any personal information of minors under the age of 16;
(5) contains any sensitive personal information as defined by applicable law (such as financial information, payment card numbers, social security numbers, or health information) without Licensor’s prior written consent;
(6) contains viruses, bots, worms, or similar harmful materials;
(7) contains any information that you do not have a right to make available under law or any contractual or fiduciary duty; or
(8) could otherwise cause damage to Licensor or any third party.
(d) Artificial Intelligence. Licensor may offer or integrate with certain artificial intelligence features as part of a Service (each, an “AI Model"). For clarity, any such AI Model is part of a Service and Subscriber’s use of an AI Model is considered part of Subscriber’s use of a Service.
Subscriber is responsible for ensuring that any summary, text, instructions or other content Subscriber makes available while using the features of the AI Model (collectively, “Inputs”) are appropriate and permissible under this Agreement. For the avoidance of doubt, such Inputs are “Content” for purposes of this Agreement.
Use of the AI Model may result in content, materials, data, visuals, metrics, insights, optimizations, recommendations findings, and other output generated and/or provided by the AI Model (collectively, “Outputs”) that are inaccurate or otherwise not fit for use (including from a legal and/or business perspective), and Licensor make no warranties, express or implied that the AI Models or any Outputs are free from error or bias. Subscriber is solely responsible for such Outputs, which is also Subscriber’s “Content” for the purposes of this Agreement. Subscriber must carefully review the resulting Outputs before relying on such Outputs, or otherwise using such Outputs to ensure everything is accurate, lawful, and otherwise appropriate and is not detrimental to Licensor and the general public. And, Subscriber agrees to have adequate rights to use such Outputs and any Content. Subscriber shall ensure that its use of any Output does not violate the intellectual property or proprietary rights of Licensor or any third party. Subscriber is not required to use any such Outputs or Content, and Subscriber is free to and should modify them as appropriate to ensure compliance with this Agreement. Subscriber also acknowledges and agrees that any Outputs may not be protectable under copyright or other intellectual property, proprietary rights, or other law. Licensor makes no warranties or representations, express or implied, that the Output or other Content is protectable under any law. Where appropriate or in the event such a disclaimer is required by Licensor, Subscriber will include as part of any Content that Subscriber develops using the AI Model a disclaimer to end users to communicate that the applicable Content may contain errors and should be independently verified.
Due to the nature of generative artificial intelligence, Outputs may not be unique, and the AI Model may generate and/or provide the same or similar Output for you as it generates and/or provides for other users. For clarity, Outputs for other users are not considered Subscriber’s Content.
Without prejudice to any of Licensor’s other rights, Subscriber acknowledges and agrees that Licensor leverages certain third parties to provide AI Models, including to generate Outputs and to process and store Inputs and Outputs in private hosting environments. By using the AI Model, Subscriber authorizes and agrees that such third parties may access, use, and store any Inputs and Outputs pursuant to their relevant terms and privacy policies.
Without limiting Licensor’s rights otherwise set forth in this Agreement, by using the AI Model, Subscriber hereby grants Licensor (and its agents, employees, officers, directors, independent contractors, affiliates, subsidiaries and representatives) a worldwide, non-exclusive, irrevocable, transferable, royalty-free, fully paid-up, sublicensable (through multiple-tiers) license to access, use, modify, display, publicly perform, distribute, copy, create derivatives from (including derivative works of) and process any and all Inputs and Outputs (including any intellectual property contained therein or embodied thereby) for any purpose, including to develop and improve the AI Model.
Licensor may use your Inputs and Outputs for machine learning purposes in order to develop and improve the AI Model, any Service, and similar products and features. Subscriber may not use Outputs for any machine learning purposes in order to develop or improve or otherwise train other AI models, or similar service, product or feature.
Subscriber acknowledges that AI Models may only be available in certain languages and subject to certain limitations (e.g., restrictions on use for certain types of customers or for certain purposes). Subscriber agrees to comply with any such restrictions or limitations. Licensor may modify, suspend, discontinue, or further limit use of the AI Model at any time (without any notice to Subscriber). Licensor may limit, suspend, or terminate an AI Model or Subscriber’s participation in or access to the AI Model at any time, with or without cause, and may suspend or terminate Subscriber’s account if Subscriber violates any of the terms of this Agreement or Licensor’s policies as to which Licensor has provided notice to Subscriber. If Licensor does any of the foregoing, Licensor shall not in any way be liable to Subscriber for any modification, suspension, termination, discontinuation, or limitation. Without limitation, the laws and regulations governing artificial intelligence and related technology are uncertain and evolving, and the ability to use the AI Model and/or Outputs may be adversely impacted in the future. If Subscriber uses any AI Model or machine learning features and functionality (including third-party models) provided by Licensor (collectively, “Licensor AI”), Subscriber agrees to:
(i) implement appropriate human oversight and safeguards to mitigate potential risks associated with its use of Licensor AI (i.e., impacts on a person’s fundamental rights, health or safety);
(ii) remain responsible for all decisions made, advice given, actions taken, and failures to take action based on its use of Licensor AI;
(iii) provide information about Subscriber’s intended use of Licensor AI and compliance with this Agreement upon request; and
(iv) evaluate Licensor AI outputs for accuracy and appropriateness in light of the probabilistic nature of AI and potential for producing inaccurate content.
(e) Violations. If Licensor reasonably believes that a violation of this Agreement has occurred or may occur in the near future in a manner that may disrupt the Service or Licensor websites for its customers or other users, Licensor may suspend or terminate Subscriber’s access to the Services and Licensor websites, without any liability to Licensor and in addition to any other remedies that may be available to Licensor.
3. Fees and Payment.
(a) In exchange for the license granted above, commencing on the Billing Start Date, Subscriber shall pay Licensor for the Term hereof the Fees, payable in advance, based on the Services and the number of users identified in the Order Form, and on any other commercial terms contained in this Agreement. Subscriber shall inform Licensor of any increases in the number of users no later than seven (7) days after the date of such increase and the Order Form will be deemed amended accordingly. Licensor reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Term or then current renewal term, upon thirty (30) days prior notice to Subscriber (which may be sent by email). Licensor may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Subscriber thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Subscriber shall be responsible for all taxes associated with Service(s) other than U.S. taxes based on Licensor’s net income. Subscriber will not be entitled to a refund or credit from Licensor under any circumstance. However, Licensor may, at its sole discretion, offer a refund, discount or credit.
(b) Pay as You Go Credits. Subscriber may purchase Pay as You Go Credits to use the Service (“Pay as You Go Credits”). Subscriber will have an opportunity to review current rates for Pay as You Go Credits prior to purchase. If Subscriber chooses to buy Pay as You Go Credits, Subscriber will have access to the features of the Service included in the relevant package, as described on the pricing page, and other than the monthly payment requirement, all of the other terms and conditions of this Agreement will still apply. Pay as You Go Credits roll over each month, and expire 1 month after purchase. Pay as You Go Credits have no cash value, cannot be refunded or redeemed for cash, and represent a limited license to use a Service for the specified volume and type of service.
(c) Promotional Free Trial. From time to time at Licensor’s discretion, Licensor may offer a promotional, free trial period of a specified duration for specified Services (“Trial Period”). To activate the Trial Period, Subscriber will be required to (1) enroll for the eligible Services of its choice, and (2) provide valid payment information to Licensor at the time of enrollment. Upon the expiration of the Trial Period, Subscriber will be charged on a monthly basis at the then-current rate for the Services it has selected. Prior to the expiration of the Trial Period, Licensor will notify Subscriber of the upcoming expiration of its Trial Period. If the payment method Licensor has on file for Subscriber is declined, Subscriber must provide to Licensor a new, valid payment method for the Services or Licensor reserves the right, without further notice, to immediately suspend or cancel Subscriber’s continued use of the Services.
To be eligible for a Trial Period, Subscriber must be a new customer and sign up for Services using the “Start Free Trial” option (or other like wording). The Promotional Free Trial offer cannot be combined with any other offer(s) and is available for a limited time. Promotional Free Trial offers are provided through a 100% discount to charges for the first bill immediately following fulfilling the eligibility criteria. Subscriber can pause its subscription or delete its account at any time via the Settings section in the Account & Billing area. Pausing Subscriber’s subscription or deleting Subscriber’s account will become effective immediately. Subscriber will not receive a refund for previously billed charges. Terms, conditions, pricing, special features, and service and support options subject to change without notice.
4. Feature Requests. During the term of this Agreement, Subscriber may request feature changes or additions in the nature of software development, customization add-in, documentation and/or integration services. To the extent any such requests are honored in Licensor’s sole discretion, such feature requests fulfilled by Licensor are not exclusive to Subscriber, and Licensor may perform services of any type or nature for any other person or entity at any time.
5. Delivery and Acceptance. Licensor will make the Service available to Subscriber as indicated on the Order Form. The Service will be deemed accepted upon the Service Start Date. Any updates, bug fixes, or upgrades (Corrections) to the Service will be deemed accepted by Subscriber on the day such Corrections are delivered.
6. Copyright Protection; Use Restrictions; Security. Subscriber agrees that the Service specifications, including without limitation, the editorial coding and metadata contained therein, are the property of Licensor or Licensor's licensors. The works and databases included in the content of the Service are protected by applicable copyright and/or patent laws. Subscriber agrees that only Authorized Users shall be permitted access to the Service. Except as set forth herein, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber's business may be Authorized Users. Subscriber shall not reverse engineer, decompile or disassemble any part of the Service except as may be authorized as part of participation in Licensor’s bug bounty program. Subscriber further agrees that neither Subscriber nor any Authorized User shall store (except as permitted under this Agreement for retrieval and display purposes only), copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works (including, without limitation, trading algorithms), test algorithms in conjunction with, or distribute by any means the Service in whole or in part to anyone, including, but not limited to, other employees of Subscriber, without Licensor's express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the Service (a) in oral and (with proper attribution to the respective Service) non-electronic written communications with clients and other employees, and (b) in email and instant messaging communications with other employees and/or securities professionals. Without limiting the foregoing, under no circumstances shall distribution under this Section by Subscriber be permitted if such distribution may be viewed as a substitute for a subscription to the Service itself. Subscriber agrees that when using the Service in this way, the facts, content, and intent of the Service will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the Service or Licensor. Other than as expressly set forth in this Agreement, no license or intellectual property rights owned or licensed by Licensor are granted to Subscriber, and all such rights are hereby expressly reserved. However, Subscriber shall own all right, title and interest in and to Subscriber’s data. Notwithstanding anything to the contrary, Licensor shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service(s) and related systems and technologies (including, without limitation, information concerning Subscriber data and data derived therefrom), and Licensor will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Service(s) and for other development, diagnostic and corrective purposes in connection with the Service(s) and other Licensor offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
7. Disclaimer. LICENSOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE(S). SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS AND LICENSOR DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.
8. Indemnification.
(a) Each Party (the “Indemnitor”) shall indemnify, defend and hold harmless the other Party (the “Indemnitee”) and its officers, directors, employees, agents, subsidiaries and Affiliates (as defined below) from and against any and all third party claims, demands, lawsuits, causes of action, and liabilities, including reasonable attorney's fees, to the extent related to or arising out of (i) Indemnitor’s breach of this Agreement or a specific representation or warranty hereunder; (ii) Indemnitor’s willful misconduct or negligent acts or omissions of the Indemnitor; and (iii) solely with respect to Licensor’s indemnification of Subscriber, and subject to Licensor’s rights below, any alleged infringement of any United States patent, copyright or trade secret by Service(s) as delivered by Licensor (excluding any open source components or third party specifications). In the event of any claim, suit, or proceeding relating to intellectual property infringement, Licensor shall have the right, at its sole option, to obtain the right to continue use of the affected Service(s), or to replace or modify the affected Service(s) so that they may be used without infringement of a third party’s United States patent, copyright or trade secret rights. If neither of the foregoing options is available to Licensor on a commercially reasonable basis, Licensor may terminate this Agreement immediately upon written notice to Subscriber, and within thirty (30) days after such termination shall pay Subscriber a termination fee equal to fees paid for the infringing Service(s) plus all fees prepaid by Subscriber attributable to any time periods after such termination. Upon such termination, Subscriber will have no further right to use the infringing Service(s). NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE RIGHTS AND REMEDIES SET FORTH IN SECTION CONSTITUTE THE ENTIRE OBLIGATION OF LICENSOR AND THE EXCLUSIVE REMEDIES OF SUBSCRIBER WITH RESPECT TO ANY THIRD PARTY INTELLECTUAL PROPERTY INFRINGEMENT CLAIM.
(b) The Indemnitee agrees to provide prompt written notice to Indemnitor of any claim or proceeding subject to indemnity hereunder. The Indemnitee agrees to give the Indemnitor the opportunity to select counsel, defend, negotiate, and settle any claims subject to indemnity and provide to the Indemnitor all information in its possession, custody, and control, and reasonable cooperation to enable the Indemnitor to carry on the defense of such claims subject to indemnity. Further, the Indemnitee shall not be responsible for or bound by any settlement of any claims subject to indemnity by the Indemnitor without prior written consent of the Indemnitee, which shall not be unreasonably withheld.
(c) As used herein, “Affiliate” means any entity controlling, controlled by, or under common control with either Party. The term “control” and its correlative meanings, “controlling,” “controlled by,” and “under common control with,” means the legal, beneficial or equitable ownership, directly or indirectly, of more than fifty percent (50%) of the aggregate of all voting equity interests in an entity.
9. Limitation of Liability. LICENSOR AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND LICENSORS ("THE PARTIES") WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS AND LOST REVENUES (COLLECTIVELY, THE "EXCLUDED DAMAGES"), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF THE PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
10. Term; Early Termination.
(a) This Agreement shall become effective when Subscriber completes the Order Form or otherwise begins receiving, accessing or using Licensor’s websites or services and, unless terminated earlier in accordance herewith, shall continue from the Billing Start Date for the period specified in the Order Form. This Agreement shall automatically renew for subsequent like terms unless either Party gives the other written notice of its intention not to renew no later than thirty (30) days prior to the end of the then current term. For clarity: (i) in the event Subscriber executes the Order Form after the Billing Start Date then this Agreement will be deemed effective from the Billing Start Date, and (ii) in the event Subscriber receives the Service before the Order Form is executed, then this Agreement shall be deemed effective from the Service Start Date.
(b) This Agreement may be terminated as follows: (a) if either Party commits a breach of any provision of this Agreement the other Party may then deliver a written notice to the breaching Party terminating this Agreement, in which event this Agreement, and the licenses granted hereunder, will terminate on the date specified in such notice; or (b) if a receiver is appointed over any assets of either Party or if either Party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect. If this Agreement is terminated before the end of its then current term for any reason other than by Subscriber under this Clause 10.(a) or (b), then Subscriber will pay to Licensor as liquidated damages the amount due by Subscriber for the previous calendar month times the number of months remaining in such Term (Liquidated Damages) within 30 days after such termination. The Parties agree that the Liquidated Damages under this clause are not intended to be and will not be punitive in effect and that the Liquidated Damages are a genuine pre-estimate of loss (which may be difficult to ascertain) resulting from early termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, if Subscriber receives any notice of late payment under this Agreement in any form, written or electronic, from Licensor including any business division (e.g., Licensor's Credit Department), such notice will be deemed to be a Notice of Breach.
11. Confidentiality. Subscriber and Licensor understand and agree that in the performance of this Agreement each Party may have access to private or confidential information of the other Party which either is marked as "confidential”, or the receiving Party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other Party. Each of us shall hold such information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than in performance of this Agreement. This obligation of confidentiality shall not apply to information that is generally available to the public through no act or omission of the receiving Party or becomes known to the receiving Party through a third party with no obligation of confidentiality, or is required to be disclosed by law, court or by any government or regulatory authority. If any confidential information is required to be disclosed by statute, rule, regulation or order of any court of competent jurisdiction, before any such disclosure the receiving Party will provide notice to the disclosing Party reasonably sufficient to allow the disclosing Party the opportunity to apply for a protective order or other restriction regarding such disclosure. If either Party elects to file this Agreement with the U.S. Securities and Exchange Commission or any other securities exchange or market, regulatory authority or other body, the filing Party will provide the non-filing Party, no less than five (5) business days before the expected date of the filing (the "Filing Date"), a copy of the Agreement marked to show the sections for which the filing Party plans to seek confidential treatment. The filing Party agrees to expand its confidential treatment request to include those provisions of this Agreement reasonably indicated by the non-filing Party before the Filing Date as provisions for which the non-filing Party requests confidential treatment. All confidential information will remain the exclusive property of the owner. Subscriber agrees that Licensor may use its name and logo in marketing materials, websites and advertisements to publicize the fact that Subscriber is a customer, but not in any manner that suggests some other association with or endorsement of Licensor by Subscriber.
12. Miscellaneous.
(a) Notice. Any written notice hereunder shall become effective as of the earlier of (1) the date of mailing by registered or certified mail or (2) the date of emailing and shall be deemed sufficiently given if sent to the email addresses stated herein and/or on the Order Form or to such other address as may hereafter be specified by notice in writing. Licensor’s email address is hello@zenable.io.
(b) Amendment. The Terms of Service included in this Agreement may be amended at any time by an authorized representative of Licensor by update of the Terms of Service appearing at this web address: https://zenable.io/terms or by other written notice to Subscriber, and such new Terms of Service shall apply thereafter if Subscriber continues to access or use Licensor’s services (whether Subscriber signed in to a Zenable account or not).
(c) Assignment. This Agreement is not transferable, assignable, delegable, or sublicensable by Subscriber in whole or in part, without the prior written permission of Licensor. This Agreement is transferable and assignable by Licensor. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors, trustees, administrators, and assigns.
(d) Survival. The following obligations of the Parties will survive termination or expiration of this Agreement for any reason: Sections 1., 6., 7., 8. (but only for three (3) years after such termination or expiration), and 9., of this Agreement and any payment obligations of Subscriber that accrue prior to such termination or expiration.
(e) Independent Contractor. Licensor is acting in performance of this Agreement as an independent contractor.
(f) Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party. No third party is a beneficiary of this Agreement.
(g) Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either Party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and nonexclusive. A waiver or failure of either Party at any time to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter.
(h) Injunctive Relief. If Subscriber breaches Section 2. of this Agreement, Licensor will be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
(i) Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability. All other provisions and portions of them hereunder will not be affected by the invalidity and will be valid and enforced to the fullest extent permitted by law.
(j) Choice of Law and Venue. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, United States, applicable to contracts made entirely within Pennsylvania and wholly performed in Pennsylvania, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in Allegheny County, Pennsylvania. With regard to any such proceedings, each of the Parties consents to such courts’ exercise of personal and subject matter jurisdiction over it, waives any venue objections to such courts, and agrees to accept service of process in the manner set forth for notices in this Agreement. In the event a dispute arises regarding this Agreement, the prevailing Party shall be entitled to its reasonable attorney’s fees and expenses incurred in any litigation in addition to any other relief to which it is entitled.
(k) Force Majeure. Any failure or delay by Licensor in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, pandemics, epidemics, local disease outbreaks, public health emergencies, communicable diseases, and quarantines, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third-party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of Licensor.
(l) Entire Agreement. This Agreement, along with any Order Form, contains the final and entire agreement of the Parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement's subject matter. Neither Party has entered into this Agreement in reliance upon any representation, warranty, condition or undertaking of the other Party that is not set out or referred to in this Agreement or the Order Form.
(m) Export Control. Subscriber may not remove or export from the United States or allow the export or re-export of the Service(s), Licensor’s applications or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Licensor’s applications and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
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