“Designated Location” means the confines of the particular location(s) set forth in theCustomer specific terms box above.
‍
“Documentation” means the published documentation as noted in the Customer specific terms box above and furnished by Zudy along with the Software.
‍
“Evaluation Purpose” means the purpose of internally testing the Software in order to evaluate the Software for potential purchase of a commercial subscription license to such Software.
‍
“Licensed Materials” means, collectively, the Software and the Documentation.
‍
“Evaluation Services” means high-level application solution architecture and consulting services in support of the Evaluation Purpose.
‍
“Software” means the proprietary software identified in the Customer specific terms box above in object code format, including any corrections, bug fixes, enhancements, modifications, updates, upgrades, or new versions thereto, that are provided by Zudy in its sole discretion under this Agreement.

2.1 Grant. Subject to the terms and conditions of this Agreement, Zudy here by grants to Customer a non-transferable, non-exclusive license during theEvaluation Term, without the right to sublicense, to install and execute the Software at the Designated Location, and use the Documentation, in each case solely for the Evaluation Purpose.

2.2 Restrictions. Except as expressly set forth in Section 2.1, Zudy reserves all rights and grants Customer no other licenses of any kind hereunder, whether by implication, estoppel, or otherwise. As a condition of the above license grant Customer shall not, and shall not permit any third party to (a) reproduce(except as expressly set forth herein), modify, translate, create any derivative work of, sell, rent, lease, loan, encumber, distribute, disclose or transfer all or any portion of the Licensed Materials, (b) reverse engineer, reverse assemble or otherwise attempt to gain access to the source code of all or any portion of the Software (except to the extent that the laws ofCustomer’s jurisdiction make such restrictions unenforceable), or (c) use theLicensed Materials for any other purpose other than the Evaluation Purpose, or make them available or accessible to any third party.

2.3 Proprietary Rights. The Licensed Materials are licensed, not sold, and Zudy and its licensors exclusively own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other worldwide intellectual property rights),in and to the Licensed Materials.

2.4 Indemnification. Zudy shall defend, indemnify and hold harmless Customer, its affiliates and their respective officers, directors, employees, representatives and contractors (collectively, “Indemnified Parties”) from and against any loss, liability, damage or expense (including reasonable attorney’s fees and expenses of litigation) incurred or imposed in connection with any claims, demands, suits, or proceedings (“Claims“) made or brought againstCustomer by a third party alleging that any of the Licensed Materials infringes or misappropriates any third party right; provided, that Customer (a) gives written notice of the Claim to Zudy within fifteen (15) days of Customer’s receipt of such Claim (provided, however, if the failure to provide timely notice does not materially prejudice Zudy’s ability to defend, then Zudy’s indemnification obligations shall remain intact); (b) gives Zudy sole control of the defense and settlement of the Claim (provided that Zudy may not settle or defend any Claim unless it unconditionally releases the Indemnified Parties of all liability and except as set forth below); and (c) provides to Zudy, at Zudy’s cost, all reasonable assistance. Zudy shall not have the right, without the Indemnified Parties’ prior written consent, to settle any Claim if such settlement (i) contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort or otherwise) or the incurrence of any costs or expenses, on the part of any Indemnified Party, (ii)imposes any obligation upon any Indemnified Party; or (iii) would otherwise have a material adverse effect on any Indemnified Party’s business. EachIndemnified Party reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification by Zudy.

Customer will provide to Zudy comments, criticism, suggested improvements, test results, answers to questions, and other feedback regarding the function, features, and other characteristics of the Licensed Materials in written or oral form when no Customer Confidential Information is contained therein (“Feedback”). Customer agrees that all Feedback is the property of Zudy and may be used, reproduced, adapted, modified, distributed, and otherwise exploited by Zudy in any manner and for any purpose.

Customer acknowledges that the Licensed Materials and Evaluation Services are provided for Evaluation Purposes only. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE LICENSED MATERIALS AND EVALUATION SERVICES ARE PROVIDED “AS IS” AND ZUDY ANDITS LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TOTHE LICENSED MATERIALS AND EVALUATION SERVICES, OR ANY PART THERE OF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF RELIABILITY, USE FULNESS,MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. ZUDY’S LICENSORS AND SUPPLIERS MAKE NO DIRECT WARRANTY OF ANY KIND TO CUSTOMER UNDER THIS AGREEMENT AND CUSTOMER AGREES THAT IT HAS NOT RELIED ON ANY WARRANTIES. THE ENTIRE RISK ARISING OUT OF THEUSE OF THE LICENSED MATERIALS AND EVALUATION SERVICES IS WITH CUSTOMER.

5.1 Responsibility for Customer Content and Copyright Protection. Customer shall be solely responsible for the legality and appropriateness of all CustomerContent, including without limitation any import, re-import, export or re-export control laws or regulations, copyright laws or regulations, and privacy or data protection laws and regulations that apply specifically toCustomer and which are not generally applicable to personal data. Without derogating from the generality of the foregoing, Zudy does not monitor CustomerContent, and Customer is solely responsible for monitoring Customer Content and for properly handling and processing notices sent to Customer (including any of its affiliates) by any person claiming that Customer Content violates such person’s rights including notices pursuant to the Digital Millennium Copyright Act.

5.2 No Sensitive Data. Customer represents and warrants to Zudy that Customer shall not upload or otherwise transfer to the platform any Customer Data that may constitute a special category of data pursuant to any applicable information security, data protection, privacy and/or other statute, act, law, regulation or directive, such as personal data (including without limitation personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, criminal convictions, health or sex life) or any Customer Data that constitute protected health information(as defined in the United States HIPPA or similar statutes) or any bank account, credit card, social security or other identifying governmental numbers as set forth in the Graham-Leach Bliley Act or other similar statutes.

5.3 Personal Data Protections. The provisions of the Data Protection Addendum can be requested from Zudy and relate to the protection of Personal Data (as defined in the GDPR) under the EU General Data Protection Regulation (GDPR) and possibly other data protection laws, shall apply to any Personal Data which maybe included in Customer Content. The terms of the Data Protection Addendum are incorporated here in by reference and shall constitute an integral part of these Terms of Service.

Zudy will provide to Customer the Evaluation Services of 10-20 hours, at no cost to Customer.

Should the Customer incur fees, Zudy’s invoice shall be due and payable in U.S.dollars by Customer, net thirty (30) days from the receipt of the correct and undisputed invoice.

The parties agree, “Confidential Information” includes but is not limited to the Licensed Materials provided by Zudy, and any Feedback (whether or not provided to Zudy), and any other information related to the Licensed Materials, including without limitation information related to the pricing, contracts, performance, functionality and quality of the Software. The Licensed Materials provided under this Agreement shall not be used outside the terms of this Agreement for any reason unless specified in writing by Zudy. In addition all Customer information including customer lists, or other proprietary information shall be kept confidential by Zudy and its’ representatives and employees.

9.1 Limitation of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS AND EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSED MATERIALS AND EVALUATION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF US $1,000 OR THE EVALUATION SERVICES FEE.

9.2 Waiver of Certain Damages. EXCEPT FOR A PARTY’S INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS AND EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE LICENSED MATERIALS OR EVALUATION SERVICES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORTOR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT ZUDY OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

9.3 SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF WARRANTIES OR LIMITATION OF LIABILITY, SO SECTIONS 4 AND 8 MAY NOT APPLY TO CUSTOMER. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF SAID SECTIONS TO BE UNENFORCEABLE, THEN LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THE FOREGOING LIMITATIONS APPLY EVEN IF THE REMEDIES DESCRIBED HERE IN FAIL OF THEIR ESSENTIAL PURPOSE.

Customer acknowledges and agrees that, in connection with the platform, Customer’s data will be stored on the cloud infrastructure of a Third Party Service Provider (“Cloud Infrastructure Provider”). Therefore, Customer agrees at all times to access and use the Services according to and in compliance with the provisions of both this Agreement and the Cloud Infrastructure Provider Terms, and in a manner that does not cause Zudy to be in breach of the Cloud Infrastructure Provider Terms, For purpose of these Terms of Service, “Cloud Infrastructure Provider Terms” means the legal terms of the Cloud Infrastructure Provider governing the use of the cloud infrastructure, including those legal terms located at https://aws.amazon.com/legal/, as in effect from time to time. ZUDY DOES NOT EXTEND ON BEHALF OF THE CLOUD INFRASTRUCTURE PROVIDER ANY WRITTEN ORORAL WARRANTY OR GUARANTEE, NOR MAKE ANY REPRESENTATION OR CLAIM, WITH RESPECT TO THE CLOUD INFRASTRUCTURE OR THE DATA STORAGE SERVICES. AS PART OF THE PROVISION OF THE CLOUD INFRASTRUCTURE, THE CLOUD INFRASTRUCTURE PROVIDER SHALL BE RESPONSIBLE FOR IMPLEMENTING APPROPRIATE MEASURES TO ENSURE THE SECURITY OF CUSTOMER CONTENT, WHEN CUSTOMER CONTENT IS IN ITS POSSESSION OR UNDER ITS CONTROL. NOTWITHSTANDING ANY OTHER TERM IN THESE TERMS OF SERVICE, ZUDY SHALL BE LIABLE TOWARDS CUSTOMER AND THIRD PARTIES (INCLUDING DATA SUBJECTS) FOR THE CLOUD INFRASTRUCTURE, INCLUDING THE IMPLEMENTATION OF MEASURES AS DETAILED ABOVE, ONLY IF AND TO THE SAME EXTENT THAT THE CLOUD INFRASTRUCTURE PROVIDER IS LIABLE TOWARDS ZUDY FOR THE PROVISION OF SUCH INFRASTRUCTURE.

11.1 Term and Termination. This Agreement and the license granted herein shall terminate automatically at the end of the Evaluation Term, unless terminated earlier as specified herein. Either party may terminate this Agreement with or without cause upon 30 days written notice to the other party; provided that no fees will be refunded. Zudy may terminate this Agreement immediately upon notice to Customer if Customer breaches any term or condition of this Agreement.

11.2 Return of Licensed Materials. Upon any expiration or termination of thisAgreement, Customer shall discontinue use of the Licensed Materials and any other information related to the Licensed Materials, and within 10 days thereafter return to Zudy or destroy, at Customer’s expense, the Licensed Software and Materials, including all copies there of, and deliver to Zudy a certification, in writing signed by an officer of Customer, that the Licensed Materials and all copies thereof have been returned or destroyed, as requested by Zudy, and their use discontinued. The following Sections shall survive any termination or expiration of this Agreement: Sections 1, 2.2, 2.3, 2.4, 3, 4,5, 6, 7, 8, 9.2, and 10.

12.1 Publicity. Neither party will issue any public announcement related to this Agreement without the written consent of both parties.

12.2 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) confirmed courier delivery; or (c) the second business day after sending by personally confirmed facsimile. Notices to Zudy shall be addressed to the attention of its Legal Department at the address set forth above. Notices to Customer are to be addressed at Customer’s address set forth above, unless Customer’s Address forNotice is set out at the end of this Agreement. Each party may change its address for notices from time to time by written notice to the other party.

12.3 Governing Law. This Agreement will be interpreted and construed pursuant to the laws of the State of Delaware in the United States without regard to:(i) conflicts of laws and provisions thereof; (ii), the United Nations Convention on Contracts for the International Sale of Goods; and (iii) whether or not Customer has an office in North America. In the event of any dispute between the parties under this Agreement, Customer agrees to submit to the exclusive personal jurisdiction of the courts of the State of Delaware. Not with standing any of the foregoing, Zudy shall have the right to seek injunctive relief in any court of competent jurisdiction.

12.4 Assignment. This Agreement may not be assigned by Customer by operation of law or otherwise, without the prior written consent of Zudy. Zudy may freely assign this Agreement. Any attempted assignment in violation of the foregoing is void.

12.5 Injunctive Relief. Customer acknowledges that the Licensed Materials and any other information related to the Licensed Materials, including without limitation information related to the performance, functionality and quality of the Software, contain or comprise valuable intellectual property, inclusive of trade secrets, and other proprietary information of Zudy and that any actual or threatened disclosure or unauthorized use or distribution of the Licensed Materials or Confidential Information will constitute immediate and irreparable harm to Zudy for which monetary damages would be an inadequate remedy and entitle Zudy to immediate injunctive relief without the need to post a bond or show actual monetary damages.

12.6 U.S. Gov’t Restricted Rights. Customer represents that it is not a U.S.government agency, and that it is not entering this Agreement pursuant to aU.S. government contract or with U.S. government funds. The Licensed Materials are commercial items, developed fully at private expense, and provided with restricted rights. Use, duplication, reproduction, release, modification, disclosure, or transfer of the Licensed Materials, or any related documentation of any kind, including technical data and manuals, by or for the U.S.Government, including without limitation any of its agencies or instrumentalities, is restricted in accordance with Federal AcquisitionRegulation (“FAR”) 12.212 for civilian purposes, and Defense FederalAcquisition Regulation Supplement (“DFARS”) 227.7202 for military purposes.

12.7 Miscellaneous. This Agreement along with any executed non-disclosure agreements (“NDA(s)”) between Zudy and Customer constitutes the entire agreement between the parties with respect to the subject matter hereof. Except for NDA(s), if any, this Agreement supersedes all prior or contemporaneous negotiations, agreements, and undertakings between the parties with respect to such matter. Headings in this Agreement are for reference purposes only and shall not affect the interpretation or meaning of this Agreement. If any provision of this Agreement is held to be contrary to law or unenforceable, then the remaining provisions of this Agreement will remain in full force and effect. This Agreement may not be modified except in writing signed by a duly authorized representative of each party. Any waivers must be in writing and signed by the party waiving its rights, and no waiver shall be construed to be a waiver of any succeeding breach or any other covenant by the other party.This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.8 Counterparts, Execution & Delivery. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. An originally executed version of this Agreement, that is delivered by one party to the other party, as evidence of signature, by facsimile, or by electronic mail after having been scanned as an image file (including, Adobe PDF and TIF, or an electronic signature) shall, for all purposes hereof, be deemed an original signature and neither party shall have the right to object to the manner in which the Agreement was executed as a defense to the enforcement of the Agreement.