BY CLICKING OR SELECTING “ACCEPT” OR “AGREE”, OR BY USING, DOWNLOADING OR INSTALLING THE SDK, YOU AGREE TO BE BOUND BY AND BECOME A PARTY TO THESE ZENDRIVE SDK TERMS OF SERVICE. IF YOU DO NOT ACCEPT ALL THE TERMS AND CONDITIONS BELOW OR ARE NOT AUTHORIZED TO ACCEPT THEM, DO NOT CLICK OR SELECT “ACCEPT” OR “AGREE”, AND DO NOT USE, DOWNLOAD OR INSTALL ANY PORTION OF THE SDK. This Zendrive SDK Terms of Service (the “Agreement”) is entered into as of the Effective Date (as defined below) by and between Zendrive Inc. (“Zendrive” or “Company”) and the company or other entity employing, contracting or retaining the individual (“Authorized Agent”) clicking or selecting “Accept” or ”Agree” or first using, downloading or installing the SDK (as defined below) or on whose behalf such individual is using, downloading or installing the SDK (“Customer” or “You”). This Agreement governs Customer’s access to and use of the SDK and any associated data and reports provided by Company. By clicking or selecting “Accept” or “Agree”, or using, downloading or installing the SDK, You and the Authorized Agent hereby (i) represent and warrant that the Authorized Agent is authorized to enter into this Agreement on behalf of Customer and to bind the Customer to this Agreement, (ii) represent and warrant that the Authorized Agent is over the age of 18 and (iii) accept and agree on behalf of Customer to be bound by all the terms and conditions contained herein.
This Agreement is subject to modification from time to time as described below and You can review the most current version of the Agreement at any time on Zendrive’s website (www.zendrive.com).
“Confidential Information” means all information of a non-public or proprietary nature disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) in writing and marked “confidential” or disclosed orally and, within fifteen business days, reduced to writing and marked “confidential”. Notwithstanding the foregoing, Zendrive’s Confidential Information shall include the SDK, Zendrive System, any Application Program Interface of or from Zendrive (“API”), and the Reports, whether or not in writing or marked. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party as evidenced by contemporaneous documentation, (iii) is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
“Customer’s Application” means the software application developed and used by the Customer for its business that (i) complies with the requirements of this Agreement and (ii) will incorporate Zendrive’s SDK hereunder.
“Customer’s Users” means the Customer’s customers, employees, contractors, clients, users and licensees using the Customer’s Application on a device.
“Effective Date” means the earlier of the date this Agreement is accepted by or for Customer by clicking or selecting “Accept” or “Agree”, the date the parties enter into a Zendrive SDK Paid Plan, or the date Customer first downloads or accesses the SDK.
“Reports” means analyses, insights, reports, scores, data and information produced or generated by Zendrive or the Zendrive System based on information received from the SDK (and/or, if applicable, from Customer or Customer’s Users) which is provided or made accessible by Zendrive to Customer hereunder (through Zendrive’s online analytics dashboard, the API or other means).
“SDK” means a software development kit component (i.e., software code designed to be embedded within a third party application) for collecting driving data and related functionality, together with any associated sample application or interface code as well as any Application Program Interface (“API”), in all such cases to the extent provided or made available by Zendrive.
“Trial” has the meaning assigned to such term in Section 3.
“Zendrive Materials” means all documents, data, know-how, methods, processes, software and other inventions, works, technologies and materials, including any and all software, documentation, computer hardware, programs, reports and specifications, client software and deliverables that are proprietary to Zendrive and provided or used by Zendrive in connection with Zendrive’s offering or use of Zendrive Technology or other performance under this Agreement.
“Zendrive SDK Paid Plan” means any supplementary agreement entered into by Zendrive (or its authorized reseller or affiliate) and Customer with respect to the SDK, associated services and/or related matters, or, if no such agreement is entered into, the SDK-related fees and terms posted on Zendrive’s website or otherwise provided in writing by Zendrive to You, in all such cases containing the then applicable fee schedule(s) or fee descriptions for license of the SDK and/or associated services offered by Zendrive and any additional terms and conditions provided therewith applicable to such SDK and services (as may be modified from time to time in accordance with this Agreement).
“Zendrive System” means a proprietary system for monitoring and analyzing driving and related matters, which includes, without limitation, the SDK and a backend system that receives, processes and analyzes data collected and transmitted by the SDK for storage and analysis by Zendrive.
“Zendrive Technology” means the Zendrive System (including without limitation the SDK) and Reports, together with (a) all materials, information, products and services included therein, (b) any related proprietary software application(s) and other technology and any third party or other software provided via the Zendrive System, and (c) all new versions, updates, revisions, enhancements, modifications, improvements and derivative works to any of the foregoing, as well as any and all suggestions, ideas, enhancement requests, and feedback relating thereto, that Zendrive provides access to or uses as part of the Zendrive System.
2.1 Registration. In order to access and use the SDK (as well as any Reports or the API if applicable) You will need to register with Zendrive. If You choose to register, You agree to provide and maintain true, accurate and complete information about You and Your use of the SDK. You agree to promptly update all such information whenever any of it changes. You are responsible for protecting Your password and take full responsibility for any use of Your account or any activity that occurs under Your account. Following sign up and registration, You may also receive an SDK key and/or other keys (such as an API key if paying for such access) to unlock the ability to use the SDK and/or certain features and functionality. Any such keys may only be used by You and solely in connection with Your Customer’s Application and the rights licensed hereunder. You agree not to (a) use the account, username, key or password of another individual or entity, or (b) disclose Your password or key to, or share Your account or key with, any third party or allow or authorize any third party to use Your key or Your account or user ID with Company. You agree to notify Company immediately if You suspect any unauthorized use of Your account or key or access to Your password, key or account.
Zendrive reserves the right to refuse to open an account for, or to deny the registration of, any individual, company or entity for any reason in Zendrive’s sole discretion. Accordingly, Zendrive may restrict or deny any such individual, company or entity the ability to download, access and use the SDK, Reports and API for any reason. Zendrive has no obligation to provide any explanation or justification for any such action.
2.2 Binding Agreement. The written agreement executed by Customer and Zendrive (“Customer Agreement”) shall be binding upon the parties and shall constitute the Zendrive SDK Paid Plan as defined in this Agreement. For those Customers subject to an agreement with an authorized reseller of Zendrive, this Agreement shall be binding upon the Customer and Zendrive, except as expressly set forth otherwise in the agreement signed by Customer with reseller. To the extent that there is any conflict between this Agreement, on the one hand, and the reseller agreement or the Customer Agreement, on the other hand, the terms of the reseller agreement or Customer Agreement, as applicable, shall control. Customer agrees that based on its use of the SDK as authorized by the agreement with the reseller, Zendrive, as a third party beneficiary of the reseller agreement, may enforce the terms and conditions of this Agreement against Customer.
3.1 Trial Period. If the SDK Paid Plan expressly provides for a Trial period, the SDK is initially licensed to You under Section 4 without charge (the “Trial”) for a trial period that runs from the Effective Date until the end date and/or event specified in the Zendrive SDK Paid Plan, unless earlier terminated in accordance with Section 13. The Zendrive SDK Paid Plan may specify, for example, that the Trial period ends upon the earlier to occur of a specified number of days after the Effective Date or the first date when Customer’s Application with the SDK is used in more than a designated number of devices (in which case, the number of devices shall include devices used by Customer’s Users). During the Trial, You may be provided a level of features and functionality with respect to the SDK and Reports that is higher than what Zendrive offers for a free post-Trial license, as provided for in the Zendrive SDK Paid Plan or as otherwise determined by Zendrive in its sole discretion. Upon the end of the Trial, your license to use the SDK under the terms of this Agreement shall continue until terminated (as provided for in Section 13) in accordance with the applicable license tier or plans You have selected or as otherwise specified in the Zendrive SDK Paid Plan. You may set or change Your applicable license tier or plan during or after the Trial through Zendrive’s website in accordance with any procedures set out in the Zendrive SDK Paid Plan. If You do not select an SDK license tier or plan prior to the end of the Trial period, Zendrive will automatically select and activate one of the tiers or arrangements for You, using the payment information You provided upon signing up for Your account. If you obtain access to the API prior to the end of the Trial Period (which requires activating a paid tier or plan in accordance with the Zendrive SDK Paid Plan), the Trial period shall automatically terminate at such time (unless the Zendrive SDK Paid Plan otherwise specify). You are entitled to only one free trial. Accordingly, You agree not to sign up for separate accounts to obtain multiple Trials or otherwise obtain more than one free Trial with respect to the SDK. Notwithstanding anything to the contrary herein, if the Zendrive SDK Paid Plan does not expressly specify the Trial period start and end dates, there will be no Trial under this Agreement and for purposes of this Agreement the Trial period will be deemed to have ended on the Effective Date.
3.2 Fees. Upon the end of the Trial (or if there is no Trial), You agree to pay to Company the fees specified in the Zendrive SDK Paid Plan (“Fees”) that are applicable to You and Your use of the SDK in accordance with the terms and conditions therein and in this Agreement. Different Fees may apply to You based on the particular license tier or plan You signed up for or were assigned, and/or based on other parameters, such as for example miles driven or number of drivers, all as specified in the Zendrive SDK Paid Plan. For tiers or plans that are priced per driver and/or per mile, the following shall apply (unless and to the extent otherwise specified in the Zendrive SDK Paid Plan):
3.3 Payment Terms. You shall pay all Fees at the times specified in the Zendrive SDK Paid Plan or, if not so specified, on a monthly basis on the first day of each month (beginning after the end of the Trial Period). All Fees are payable in United States dollars by a check made payable to Zendrive or by wire transfer of immediately available funds to an account designated by Zendrive, or as otherwise expressly provided for in the Zendrive SDK Paid Plan. All Fee payment obligations are non-cancelable, and all Fees paid are non-refundable and non-creditable. Any Fees that are not received from You by the due date therefor will accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment is due until the date paid in full. Failure of Customer to pay any Fees within thirty (30) days after notice to Customer shall entitle Zendrive to terminate Customer’s access to and use of the SDK and Reports (as well as this Agreement) without further notice. For the avoidance of doubt, unless and to the extent the Zendrive SDK Paid Plan states otherwise, You must terminate this Agreement (and Your account and access to the SDK) prior to the end of the Trial period in order to avoid any charges for Fees. Failure to terminate prior to the end of the Trial period constitutes Your agreement to be charged (and to pay) Fees at the rates applicable to Your license tier or plan as selected by or assigned to You.
3.4. Taxes. You are responsible for paying (and all Fees are exclusive of) any taxes, levies, duties or similar governmental assessments of any nature associated with your use of or access to the SDK and Reports or the payment of Fees under this Agreement (other than taxes on Company’s net income). If Company has the legal obligation to pay or collect taxes, levies, duties or similar assessments for which You are responsible hereunder, Company may add the appropriate amount to the Fees charged to and payable by You hereunder.
3.5 Audit Rights. Customer shall maintain accurate books and records supporting the calculation and payment of all Fees due to Company hereunder for a period of at least one (1) year after such Fees are due and payable. Company may, at its own expense, examine or audit (or appoint a third party representative to examine or audit) those books and records solely for the purpose of verifying the accuracy of the Fees required to be paid (and actually paid) hereunder. Company may make an examination of a particular time period only once, and only within the three (3) year period described above. Such examination or audit shall be made during Your usual business hours, upon at least ten (10) days prior written notice, at the place where such books and records are maintained. The examination and audit rights granted herein shall not be exercised more than once in any twelve (12) month period. If the examination or audit reveals an underpayment of Fees in excess of six percent (6%), Customer shall reimburse Company for the cost and expenses of such examination or audit. Any underpayment of Fees revealed by the examination or audit shall be promptly rectified and paid, together with interest thereon in accordance with the interest provisions of this Agreement.
4.1 License. Subject to the terms and conditions of this Agreement, Zendrive hereby grants to Customer a limited, non-exclusive, revocable, non-sublicenseable and non-transferable license solely during the Term to (i) embed the SDK into Customer’s Application solely for use in Customer’s Application for operating the data collection and related features of the SDK and generating Reports, and (ii) to copy and distribute the SDK, solely as embedded in the Customer’s Applications, in up to the number of devices specified in the Zendrive SDK Paid Plan (or, if not so specified, in no more than 100 devices or as Zendrive expressly authorizes), which devices are solely limited to devices used by Customer’s Users, and only for the purposes described in (i) above. Subject to the terms of this Agreement, if and to the extent Customer has selected and is paying for a license tier or plan that includes access to and use of the API in accordance with the Zendrive SDK Paid Plan, Customer may access and use the API solely in connection with exercising the foregoing license and accessing and using Reports resulting therefrom (and any such Reports accessed or used through the API shall be subject to the same terms and conditions as all other Reports under Section 5 and otherwise under this Agreement). Customer shall not, and has no rights to, distribute or make available the SDK on a stand-alone basis or in or with any other software without Zendrive’s prior written consent (and in such case solely to the extent of such consent).
4.2 License Tiers. The foregoing license shall be further limited by the applicable license tier or plan applicable to Customer (if any) as specified in the Zendrive SDK Paid Plan (which may be based in whole or in part on the Fees paid or payable by Customer). These may include, without limitation, restrictions or limits on use, features, performance or functionality of the SDK or corresponding Reports based on the tier level or arrangement applicable to Customer. Company may also implement such restrictions or limits technologically. The Zendrive SDK Paid Plan may specify the process, timing and terms under which You may switch to different tiers or arrangements.
4.3 Use Restrictions. Customer will not and has no rights to (i) copy or distribute (except for such copying and distribution as expressly provided above or as required by law) or modify, adapt, translate or otherwise create derivative works of or based on the SDK or the API; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the SDK or API; (iii) rent, lease, sell, resell, assign or otherwise transfer rights in or to the SDK or API; (iv) remove, alter or conceal any proprietary notices or labels on, in or accompanying the SDK (or the API or any Reports); or (v) use, post transmit or introduce any device, software or routine which interferes or attempts to interfere with the operations of the SDK or API (including, without limitation, any interference with security-related features or features to restrict use of copying or enforce limitations of use, or any linking, uploading or sharing of any viruses, worms, defects, Trojan horses, or any items of a destructive or malicious nature). Customer will comply with all applicable laws and regulations in Customer’s use of and access to the SDK, API, Zendrive System and Reports. The SDK and API include open source software, and Customer will comply with all open source licenses and copyright notices that are available in the libraries referenced in the SDK or otherwise disclosed to You by Zendrive. You shall use any SDK key, API key or similar key provided to You by Zendrive solely in connection with your account and the SDK and rights provided to You under this Agreement; You shall not use any such key outside of its intended use.
During the Term, Zendrive may provide Customer with Reports, in such scope and delivered at such time or times as and if specified in the Zendrive SDK Paid Plan or, to the extent not so specified, as determined in Zendrive’s sole discretion. If applicable, and without limitation, the Reports may include collision detection information and driving scores. Customer shall use such Reports only for internal business purposes during the Term of this Agreement and shall not transfer, disclose, publish or make available any Reports (including without limitation the contents or any portion thereof) to any third party, without Zendrive’s prior written consent. The raw data produced or collected through the SDK is the exclusive property of Zendrive, and Zendrive has no obligation to provide or make available such raw data. Without limiting general disclaimers and other provisions in Section 10 below, You understand and agree that all data and information (including without limitation any scores and analyses) in any Reports are provided without warranty or guaranty of any kind (and without any assurance as to their reliability, accuracy or predictability). You (and any of Customer’s Users) are solely responsible for the use of, reliance upon, and any decisions made based upon, the Reports and the data and information therein. Accordingly, you acknowledge and agree that any such Reports (and the data, scores, analyses and information therein), cannot be relied on to accurately transmit collision occurrence information or predict or ensure the future activities, behaviors or safety of drivers or that, for example, any particular driver will not get into a collision in the future. Zendrive disclaims all responsibility and liability with respect to any reliance upon, decisions based on or other use of the Reports and the data, scores, analyses and information therein.
6.2 Customer Data. With respect to any data or information provided by Customer or Customer’s Users for use by Zendrive in connection with this Agreement (“Customer Data”), Customer hereby grants to Zendrive, its affiliates, licensors, suppliers and service providers a worldwide, royalty-free, fully-paid up, irrevocable, non-exclusive, transferable, sublicensable license to use the Customer Data (a) during the Term of this Agreement to provide the SDK functionality, Reports and related services under this Agreement (including without limitation to use the Zendrive Technology in connection therewith); and (b) during and after the applicable Term of this Agreement, to the extent incorporated into the Reports, algorithms, models or related aspects of the Zendrive Technology. The foregoing license shall survive any expiration or termination of this Agreement. Customer acknowledges and agrees that the Zendrive Technology is continually evolving through the access to and/or use of the Customer Data, data from other Zendrive customers, data from Zendrive’s proprietary sources and/or publicly available information. For example and without limitation, certain features and functionality of the Zendrive Technology involve probabilistic models and/or algorithms that are improved or better calibrated through the use of such Zendrive Technology with actual data (such Customer Data and other data), which is part of what makes access to the Zendrive System, SDK functionality, Reports and other services of particular value to Customer and other customers. Accordingly, all developments, learning, insights, models and any other intellectual property created, developed, authored, invented or generated by or for Zendrive under or in connection with this Agreement (whether through the use of or access to Customer Data or otherwise) shall remain solely owned by Zendrive (and, for the avoidance of doubt, not jointly owned nor subject to joint ownership with Customer), and any such developments, learning, insights and models based on or resulting from the use of or access to Customer Data cannot be undone as it is neither determinable nor delete-able.
Zendrive is not obligated to provide maintenance, technical support or updates to Customer for any portion of the SDK, except to the extent expressly provided in any Zendrive SDK Paid Plan; however, if Zendrive, in its own discretion, provides an updated version of the SDK to Customer, any such updates shall be deemed included within the SDK for purposes of this Agreement and Customer shall implement such updated SDK within the Customer’s Application reasonably promptly.
Each of Zendrive and Customer hereby grants to the other party a non-exclusive, non-transferable, royalty-free, personal, worldwide license for the Term of this Agreement to use such party’s business name as set forth in the SDK registration form and any logo, design or other business name such party chooses (but is not required) to provide to the other party (collectively, “Trademarks”) solely to identify that Zendrive is providing the SDK and analytics services to Customer and to provide a link to the other party’s website. Each party shall maintain the other party’s Trademarks exactly as provided by the owner thereof and no party shall make any alteration of another party’s Trademarks other than resizing for technological reasons provided that all proportions of the relevant Trademark are maintained. Each party shall supply the other party with suitable specimens of its use of the other party’s Trademark(s) upon reasonable notice, and shall remedy any deficiencies in its use of any of the Trademark(s) within thirty (30) days’ notice from the other party. Either party may terminate the license granted herein to the other party by providing a thirty (30) days’ notice to the other party. Except as prohibited by law, each party agrees that it will do nothing inconsistent with the other party’s ownership of the Trademark(s) during or after the term of this Agreement. Each party agrees that its use of the other party’s Trademark(s) shall inure to the benefit of and be on behalf of the other party. Any goodwill arising out of a party’s use of the other party’s Trademark(s) shall inure solely to the benefit of the owner of such Trademark(s).
Customer and Zendrive agree to keep confidential the Confidential Information of the other party using the same degree of care that it uses to protect its own Confidential Information (but in any event no less than reasonable care). Each party agrees (i) not to use any Confidential Information of the other party for any purpose other than to exercise its rights and perform its obligations under this Agreement, and (ii) except as otherwise authorized by the other party in writing, not to disclose Confidential Information of the other party to any third party and to limit access to Confidential Information of the other party to those of its and its affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by obligations of confidentiality at least as protective as those contained herein. A party may disclose Confidential Information of the other party if and to the extent it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and reasonably practicable). If the parties entered into a confidentiality agreement, the terms hereof are supplemental thereto and do not modify such agreement. Notwithstanding anything to the contrary herein, the parties agree that a material breach of this Section 9 or Section 12 and other rights and duties in this Agreement adversely affecting either party’s intellectual property rights or either party’s rights in Confidential Information may cause irreparable injury to the other party for which monetary damages would not be an adequate remedy and that either party shall be entitled to apply for equitable relief, without the posting of a bond, in addition to any remedies it may have hereunder or at law.
10.1 DISCLAIMER OF WARRANTIES.
(A) YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SDK, API, ZENDRIVE SYSTEM, REPORTS AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED THEREIN (“ZENDRIVE TECHNOLOGY”) IS AT YOUR (AND YOUR USER’S) SOLE RISK. THE ZENDRIVE TECHNOLOGY IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE ZENDRIVE TECHNOLOGY OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY THAT (i) THE ZENDRIVE TECHNOLOGY WILL MEET YOUR REQUIREMENTS, (ii) THE ZENDRIVE TECHNOLOGY WILL BE UNINTERRUPTED, AVAILABLE FOR USE AT ANY GIVEN TIME, TIMELY, SECURE, OR ERROR-FREE, OR (iii) THE QUALITY OF THE ZENDRIVE TECHNOLOGY WILL BE ACCURATE, RELIABLE OR OTHERWISE MEET YOUR EXPECTATIONS.
(B) WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO ANY COLLISION DETECTION OR REPORTING FUNCTIONALITY ASSOCIATED WITH THE SDK (IF APPLICABLE), ALTHOUGH ZENDRIVE ENDEAVORS TO SUCCESSFULLY DETECT COLLISIONS, NOT ALL COLLISIONS MAY BE DETECTED AND SOME NON-COLLISIONS MAY BE FALSELY REPORTED. ZENDRIVE DOES NOT WARRANT OR GUARANTEE THAT THE ZENDRIVE TECHNOLOGY WILL DETECT AND/OR REPORT ALL COLLISIONS (OR THAT IT WILL AVOID ANY FALSE POSITIVES) OR THAT EMERGENCY ASSISTANCE WILL BE PROVIDED IN THE EVENT OF ANY COLLISION. ZENDRIVE IS NOT LIABLE FOR THE ACTIONS OR INACTIONS OF YOU OR CUSTOMER’S USERS, OR OF ANY EMERGENCY RESPONDERS OR OTHER SERVICE PROVIDERS WHO MAY BE CONTACTED, OR FOR THE INABILITY TO CONTACT ANY EMERGENCY RESPONDER OR OTHER SERVICE PROVIDER IN ANY PARTICULAR SITUATION. YOU AND CUSTOMER’S USERS ARE SOLELY RESPONSIBLE FOR SAFE VEHICLE OPERATION, PROPER VEHICLE MAINTENANCE AND FOR AVOIDING AND RESPONDING TO ANY COLLISIONS.
(C) FURTHERMORE, THE ZENDRIVE SYSTEM AND ASSOCIATED REPORTS RELY ON THE PROPER FUNCTIONING OF MOBILE DEVICES, WIRELESS COMMUNICATIONS NETWORKS AND THE GLOBAL POSITIONING SYSTEM (“GPS”), AMONG OTHER THINGS. ZENDRIVE IS NOT RESPONSIBLE OR LIABLE FOR ANY FAILURES OR DELAYS DUE TO ANY OF THE FOREGOING AND THE ZENDRIVE SYSTEM AND REPORTS MAY NOT BE AVAILABLE OR FUNCTIONING IN A GIVEN LOCATION OR AT A GIVEN TIME.
10.2 LIMITATION OF LIABILITY. YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY, AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PUBLISHERS, COLLABORATORS, BUSINESS PARTNERS AND LICENSORS, SHALL NOT BE LIABLE FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE ZENDRIVE TECHNOLOGY, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, DAMAGES SUFFERED BY CUSTOMER’S USERS AND DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES); OR (B) ANY INJURIES TO PERSONS OR DAMAGE TO PROPERTY RELATED TO YOUR OR CUSTOMER’S USERS USE OF THE ZENDRIVE TECHNOLOGY, INCLUDING BUT NOT LIMITED TO INJURIES TO PERSONS OR PROPERTY RELATED TO USE OF COLLISION DETECTION OR EMERGENCY NOTIFICATION SERVICES. IN NO EVENT WILL COMPANY’S (OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS) CUMULATIVE LIABILITY TO YOU EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS (US$100.00), AND (B) THE AMOUNT OF FEES PAID BY YOU TO ZENDRIVE (OR ITS RESELLER) OVER THE TWELVE MONTHS IMMEDIATELY PRECEDING THE FIRST DATE THE CLAIM UNDERLYING SUCH DAMAGES AROSE, EXCEPT TO THE EXTENT SUCH LIMITATION IS NOT PERMITTED BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to You to the extent applicable law so requires.
To the maximum extent permitted by law, Customer agrees to defend, indemnify and hold harmless Zendrive and its respective affiliates, officers, directors, employees agents and licensors from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising out of or accruing from (i) Customer’s (or Customer’s User’s) access to or use of the Customer’s Application, SDK, API or Reports or Customer’s distribution of the Customer’s Application or SDK; (ii) Customer’s breach of this Agreement; (iii) Customer’s violation of any applicable laws, rules or regulations; (iv) Customer’s gross negligence or willful misconduct; or (v) Customer’s violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right. Zendrive reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer.
The Zendrive System, SDK, API and Reports are protected by U.S. and international copyrights, patents, trade secrets and/or other intellectual property rights. Subject to the licenses expressly granted to Customer herein, Zendrive shall retain ownership of, and all right, title and interest in and to, the SDK (including, without limitation, all data collected or generated by the SDK), Zendrive System, API, Reports and all of Zendrive’s other intellectual property rights. No intellectual property or other rights or licenses are granted or otherwise provided by Zendrive under this Agreement, by implication, estoppel or otherwise, beyond those expressly provided for herein. Neither the SDK nor any copies thereof are sold or transferred hereunder; instead only the limited rights to use such software as expressly provided for herein are granted hereunder.
13.1 Term. This Agreement shall be effective from the Effective Date until the end of the period during which any SDK Paid Plan is in effect (or if no such period is specified for an initial period of one (1) year), subject to its expiration, extension or earlier termination in accordance with the terms of this Agreement (such period, as may be extended, from the Effective Date until expiration or earlier termination being the “Term” hereunder). In the event a Zendrive Paid Plan provides for a Trial Period, prior to the end of the Trial, Customer shall choose to upgrade or select its license tier or plan (or choose to terminate this Agreement), subject to the Fees as described above. If Customer fails to make any such choice or selection prior to the end of the Trial, Zendrive may, in its sole discretion, either assign Customer to a tier or plan of Zendrive’s choosing or terminate this Agreement, the licenses herein and Customer’s access to and use of the SDK and Reports. Immediately upon the end of any Trial (unless terminated) or an initial one year period absent (if applicable), the Term shall automatically be extended for a period of one (1) year from the end of the Trial or initial one year period (if applicable), and at the end of such one (1) year extension, the Term shall automatically renew and be extended for successive one (1) year terms thereafter, unless and until earlier terminated as provided for herein.
13.2 Termination. During any Trial, either party may terminate this Agreement for convenience immediately upon written notice to the other party. In the absence of any Trial (or after the Trial ends), either party may terminate this Agreement pursuant to the terms of the Zendrive SDK Paid Plan, or if no plan is signed, for convenience upon ninety (90) days prior written notice to the other party. Furthermore, in the event that either party: (i) commits a material breach of this Agreement at any time during the Term and fails to sure such breach within thirty (30) days after written notice to the breaching party; (ii) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (iii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (iv) makes an assignment for the benefit of creditors; or (v) undergoes any dissolution or cessation of business, the other party may terminate this Agreement immediately upon written notice.
13.3. Account Suspension. During the Trial, Zendrive may suspend Your access to the SDK, API, Zendrive System and Reports at any time without prior notice. In the absence of any Trial (or after the Trial ends) Zendrive may suspend Your access to the SDK, API, Zendrive System and Reports at any time without prior notice to address breaches of this Agreement or other reasonable and appropriate issues, problems or concerns, but Zendrive shall use reasonable efforts to restore such access when such issues or concerns are addressed unless and until this Agreement expires or is terminated.
13.3 Effect of Termination. Upon the effective date of any expiration or termination of this Agreement, each party shall promptly return to the other party, or, if requested by the other party, destroy all copies of the other party’s Confidential Information in its possession or control (except to the extent covered under any licenses granted hereunder that expressly survive such expiration or termination). Furthermore, upon the effective date of any expiration or termination of this Agreement and without further notice to Customer: (i) Customer’s right to access and use the SDK, API, Zendrive System and Reports shall terminate immediately and Customer shall cease using them and cease distributing any new copies of the SDK in the Customer’s Application; (ii) all licenses granted to Customer hereunder shall automatically and immediately terminate; and (iii) Customer shall promptly return to Zendrive all Reports (and any other Zendrive Materials, if any) in its possession or control (along with all documents, files, models, analyses, derivative works and materials containing, reflecting, incorporating or based on any Reports or other Zendrive Materials) and permanently erase and destroy all such Reports, Zendrive Materials, documents, files, models, analyses, derivative works and materials, including without limitation from all systems and storage devices it directly or indirectly controls. Customer shall certify in writing that such erasure and destruction has been fully completed and provide to Zendrive such certification, made by an authorized officer of Customer, within thirty (30) days of the expiration or termination of this Agreement. Following termination or expiration of this Agreement, Customer shall use reasonable efforts to disable and remove the SDK from existing copies of the Customer’s Application or replace such existing copies with new copies that do not contain the SDK (though, in any event, all copies of the SDK may cease to function as of the expiration or termination of this Agreement). Termination or expiration of this Agreement shall not relieve either party of any obligation that has accrued prior to the effective date of termination or expiration. Furthermore, any payment obligations of Customer that survive or apply after expiration or termination of the Agreement as provided for in the Zendrive SDK Paid Plan shall remain in effect after termination or expiration of this Agreement until satisfied. Without limiting the foregoing, except as otherwise provided in the Zendrive SDK Paid Plan, if You terminate for convenience or Zendrive terminates for breach by You (after the end of the Trial period), You shall be obligated to pay Zendrive an amount equal to all Fees at the rate level then remaining that would be due and payable through the end of the original Term. The foregoing shall be based on the average monthly Fees payable over the previous six (6) months (or, if Fees have not be payable for that long, the calculation shall be based on the monthly average since the first date Fees were payable) and the total amount is due (and may be charged by Zendrive) in one lump, aggregate sum within ten (10) days of termination. The following provisions shall also survive any termination or expiration of this Agreement: Section 3 (Fees; Trial) (solely with respect to payment obligations that have accrued prior to, or expressly survive, expiration or termination), Section 6 (Data and Privacy), Section 9 (Confidentiality), Section 10 (Warranty Disclaimer and Limitation of Liability), Section 11 (Indemnification), Section 12 (Intellectual Property Rights), this Section 13 (Termination), Section 15 (Arbitration) and Section 16 (General Provisions). Customer acknowledges that Customer Data will impact the Zendrive System and other Zendrive Technology in connection with this Agreement or Customer’s use of the SDK or Reports and related services from Zendrive hereunder (such as, for example and without limitation, improvement and/or calibration of probabilistic models and/or algorithms within the Zendrive Technology that support features and functionality desired by Customer and other customers), and that any learning, developments, models or insights resulting from Zendrive’s access to and use of Customer Data hereunder cannot be determined or deleted, and may continue to be retained and used by Zendrive without restrictions during and after the Term of this Agreement.
Zendrive reserves the right to amend this Agreement, including, without limitation, these Terms of Service from time to time, except to the extent the Zendrive SDK Paid Plan expressly requires mutual consent or agreement of the parties for such amendment or otherwise expressly limits or restricts such amendment. Zendrive will date and post the most current version of this Agreement on www.zendrive.com. If Zendrive makes any changes that it deems substantial, Zendrive may notify Customer by sending Customer an email to the email address associated with Customer’s account, provided that, for the avoidance of doubt, any failure to provide such notice shall not limit or prevent such changes from going into effect as provided herein. Any such changes will become effective within fifteen (15) calendar days from the earlier of Zendrive’s notification to Customer or posting the amended Agreement on www.zendrive.com. The changes will become effective immediately for new users of the SDK. Your access or use of the SDK, API or Reports after our publication or notice of the amended Agreement will constitute Your acceptance of such revisions. If You do not want to agree to any changes or amended Agreement, Your sole recourse is to terminate this Agreement for convenience in accordance with Section 13.2 above (and any termination notice from You prior to the effective date of amendment of this Agreement shall result in such amendments not applying to You so long as this Agreement terminates in due course pursuant to such notice). Changes will not apply retroactively.
ANY MATTER WE ARE UNABLE TO RESOLVE AND ALL DISPUTES OR CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER INVOLVING YOU OR CUSTOMER’S USERS), INCLUDING ITS FORMATION, ENFORCEABILITY, PERFORMANCE, OR BREACH (EACH, A “CLAIM”), SHALL BE FINALLY SETTLED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (THE “AAA”) IN ACCORDANCE WITH THE PROVISIONS OF ITS COMMERCIAL ARBITRATION RULES AND, IF APPLICABLE, THE SUPPLEMENTARY PROCEDURES FOR CUSTOMER-RELATED DISPUTES, EXCLUDING ANY RULES OR PROCEDURES GOVERNING OR PERMITTING CLASS ACTIONS. THE ARBITRATOR, AND NOT ANY FEDERAL, STATE, OR LOCAL COURT OR AGENCY, SHALL HAVE EXCLUSIVE AUTHORITY TO RESOLVE ALL CLAIMS. THE ARBITRATOR SHALL BE EMPOWERED TO GRANT WHATEVER RELIEF WOULD BE AVAILABLE IN A COURT UNDER LAW OR IN EQUITY. THE ARBITRATOR’S AWARD SHALL BE BINDING ON THE PARTIES AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THE PARTIES EXPRESSLY WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT. ANY ARBITRATION WILL BE CONDUCTED BY THE PARTIES IN THEIR INDIVIDUAL CAPACITIES ONLY AND NOT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION, AND THE PARTIES WAIVE THEIR RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS. IF ANY COURT OR ARBITRATOR DETERMINES THAT THE CLASS ACTION WAIVER SET FORTH IN THE PRECEDING SENTENCE IS VOID OR UNENFORCEABLE FOR ANY REASON OR THAT AN ARBITRATION CAN PROCEED ON A CLASS BASIS, THEN THE ARBITRATION PROVISION SET FORTH IN THIS SECTION SHALL BE NULL AND VOID IN ITS ENTIRETY AND THE PARTIES SHALL BE DEEMED TO HAVE NOT AGREED TO ARBITRATE CLAIMS, NOTWITHSTANDING ANY OF THE FOREGOING TO THE CONTRARY, ARBITRATION SHALL NOT APPLY TO CLAIMS TO PROTECT INTELLECTUAL PROPERTY RIGHTS (SUCH AS PATENT, COPYRIGHT, TRADEMARK OR TRADE SECRET RIGHTS, BUT NOT INCLUDING PRIVACY OR PUBLICITY RIGHTS WHICH SHALL BE SUBJECT TO ARBITRATION HEREUNDER), AND ALL SUCH INTELLECTUAL PROPERTY RIGHTS DISPUTES SHALL BE SUBJECT TO RESOLUTION IN A COURT OF COMPETENT JURISDICTION AND SHALL NOT BE DEEMED “CLAIMS” FOR PURPOSES OF THE FOREGOING ARBITRATION PROVISIONS.
This Agreement and any other document incorporated herein by reference constitutes the entire agreement between You and Company with respect to the subject matter hereof, and supersedes any prior agreements, understandings or arrangements between You and Company with respect to such subject matter. You may not assign the Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Company. Any purported assignment or delegation by You without the appropriate prior written consent of Company will be null and void. Company may assign the Agreement or any rights hereunder without Your consent. THE SDK AND RELATED TECHNOLOGY ARE SUBJECT TO U.S. EXPORT REGULATIONS AND MAY BE SUBJECT TO EXPORT OR IMPORT REGULATIONS IN OTHER COUNTRIES. THE SDK AND RELATED TECHNOLOGY MAY NOT BE EXPORTED, REEXPORTED, OR TRANSFERRED, DIRECTLY OR INDIRECTLY TO EMBARGOED COUNTRIES OR INDIVIDUALS OR IN VIOLATION OF U.S. EXPORT LAWS. The Agreement and the relationship between You and Company shall be governed by the laws of the State of California, without regard to or application of its conflict of law provisions, rules and principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is expressly disclaimed. You agree to submit to the personal jurisdiction of the courts located in San Francisco County, California for the purpose of litigating all claims and disputes under or arising out of this Agreement. Further YOU AGREE THAT YOU MUST BRING ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR RELATIONSHIP BETWEEN YOU AND US, WITHIN ONE (1) YEAR AFTER THE CLAIM ARISES, OR THE CLAIM WILL BE PERMANENTLY BARRED. The failure or delay of Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court or applicable adjudicator should endeavor to give effect to the parties’ intentions as reflected in the provision to the full extent consistent with applicable law (and otherwise severed from this Agreement), and the other provisions of the Agreement shall remain in full force and effect. You and Company are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. The section titles in the Agreement are for convenience only and have no legal or contractual effect.
You agree that by submitting or providing any suggestions, enhancement requests, comments, recommendations, ideas or other feedback regarding the SDK, API, Reports or Zendrive System or the use, features or operation thereof (collectively, “Suggestions”), You automatically grant Company a license to any of your intellectual property rights therein. Accordingly, You hereby grant to Company a royalty-free, worldwide, irrevocable, perpetual, sublicenseable license to use and incorporate into the SDK, API, Reports or Zendrive System any Suggestions.
Zendrive may provide notices to Customer with respect to this Agreement, by posting such notices to its website zendrive.com or by sending them to the e-mail address or other contact address Customer provides upon registration or setting up of Customer’s account. Any such notices shall be deemed properly and timely given to You hereunder. Any notices to Zendrive must be sent to: email@example.com OR Zendrive Inc., 933 Market St, Suite 1300, San Francisco, CA 94111 via first class or air mail or overnight courier, and are deemed given upon receipt. You consent to the use of: (a) electronic means to complete this Agreement and to provide You with any notices given pursuant to this Agreement; and (b) electronic records to store information related to this Agreement or your use of the SDK.