GRANT OF LICENSE. The Software Products are licensed, not sold. This EULA grants Licensee the following rights:
1. Grant. Licensee may install and use the Software Products on computers located at Licensee’s place of business to be used in conjunction with Zonar’s web based applications for Licensee’s business, pursuant to the terms and conditions herein. This license provides no ownership interest.
2. Description of Other Rights and Limitations on Reverse Engineering, Decompilation, Disassembly, Copying and Distribution. Licensee may not reverse engineer, de-compile, or disassemble the Software Products.
3. Software Transfer. Licensee may not sub-license or otherwise transfer its rights under this EULA without prior written permission of licensor. Licensee may not copy or distribute the Software Products except as provided in paragraph 1 without Zonar’s express, written approval.
4. Software Updates. Zonar may from time to time, update, modify, improve or enhance the Software Products solely at its option. Zonar may make these software updates available to subscriber. Any updates made available to subscriber shall be covered by this EULA.
5. Warranty and Disclaimer.
5.1 Subscriber acknowledges and agrees that performance of the Software Products may vary, depending on Subscriber’s hardware and operating system, and other factors beyond Zonar’s control, and that Zonar does not warrant that the Software Products will meet Subscriber’s requirements or perform continuously without error. However, subject to the limitations set forth in Sections 6 and 7, Zonar warrants that the Software Products will perform as part of Zonar’s web based application substantially as described, provided that the Software Products are used only on the equipment and in the environment for which they were designated and configured. This limited warranty is given to Subscriber only and may not be transferred to any other person.
5.2 ZONAR DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, EXPRESS OR IMPLIED (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF COMPATIBILITY WITH OTHER SOFTWARE PRODUCTS, OR ANY WARRANTY AGAINST INTERFERENCE WITH ENJOYMENT OF THE SOFTWARE OR AGAINST INFRINGEMENT) OTHER THAN THE LIMITED WARRANTY PROVIDED UNDER PARAGRAPH 5.1 ABOVE. EXCEPT FOR THIS LIMITED WARRANTY, SUBSCRIBER WAIVES ANY AND ALL WARRANTIES WHICH MIGHT HAVE ARISEN, OR MIGHT LATER ARISE, FROM COURSE OF PERFORMANCE OR DEALING, OR USAGE OF THE TRADE AND RELEASES ZONAR FROM ALL LIABILITY FOR LOSS OR DAMAGE SUSTAINED RELATING THERETO.
6. Exclusive Remedies. Subscriber’s exclusive remedies under the limited warranty provided under Paragraph 5 are as follows:
6.1 If notified by Subscriber in writing of a problem during the warranty period, Zonar, at its option, will either (a) at no charge repair or replace each Software Product to make the item operate as warranted, or (b) refund to Subscriber the amount actually paid by Subscriber for such item. Zonar makes no warranty and shall incur no liability for defects in the Software Products or damages resulting therefrom in the event that Subscriber (a) modifies the Software Product, (b) operates the Software Product or uses it for a purpose other than as specified by Zonar, (c) operates the Software Product on computer products or devices that do not meet the minimum system configuration as set forth in the documentation or as notified by Zonar, or (d) breaches this Agreement in any way.
6.2 THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF ZONAR AND THE RIGHTS, CLAIMS AND REMEDIES OF SUBSCRIBER SPECIFICALLY SET FORTH IN SUBSCRIBER’S SUBSCRIPTION AND LICENSE AGREEMENT WITH ZONAR ARE EXCLUSIVE. SUBSCRIBER HEREBY RELEASES ZONAR FROM ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES AND HEREBY WAIVES ALL OTHER RIGHTS, CLAIMS, AND REMEDIES AGAINST ZONAR, ITS OWNERS, OFFICERS, OR EMPLOYEES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY AND ALL EQUIPMENT, SOFTWARE, OR OTHER TANGIBLE OR INTANGIBLE ITEMS OR SERVICES PROVIDED UNDER THIS AGREEMENT.
7. Limitation of Liability.
7.1 ZONAR SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE, PROFIT, OR DATA), WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, THE SOFTWARE TO BE LICENSED THEREUNDER, AND/OR THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF ZONAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY TO SUBSCRIBER IN CONNECTION WITH THIS AGREEMENT, THE SUBSCRIBER’S SUBSCRIPTION AND LICENSE AGREEMENT WITH ZONAR, OR THE SOFTWARE, REGARDLESS OF THE FORM OF CLAIM OR ACTION OR FAILURE OF ESSENTIAL PURPOSE, EXCEED THE VALUE OF ONE MONTH’S SUBSCRIPTION FEE PAID BY SUBSCRIBER TO ZONAR UNDER SUBSCRIBER’S SUBSCRIPTION AND LICENSE AGREEMENT, NOT TO EXCEED $1,000.
7.2 Subscriber acknowledges and agrees that the fees charged by Zonar for the Software Products reflect the allocation of risks provided by the foregoing limitation of liability. By using the Software Product, Subscriber acknowledges and represents that it has read and understands these allocations of risk limiting the liability of Zonar, and that it understands that a modification of the allocation of risks set forth in this Agreement would affect the fees charged by Zonar, and that Subscriber, in consideration of such fees, agrees to such allocation of risk.
8. Termination Without Prejudice to Any Other Rights. Zonar may terminate this EULA if Licensee fails to comply with the terms and conditions of the EULA. In such event, Licensee must destroy all copies of its Software Product and all of its component parts.
9. Copyright and Patent. All title and copyrights in and to the Software Products including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the software products, the accompanied printed materials and any copies of the software products are owned by Zonar, and are protected under U.S. copyright law, as well as applicable copyright treaties. Removal or obscuring of any copyright, trademark notice or restriction legend is prohibited.
10. Attorney’s Fees; Governing Law and Jurisdiction. In any action to enforce this agreement, the prevailing party shall be entitled to recover, in addition to any and all other relief, his reasonable attorney’s fees, costs and expenses incurred in such enforcement action. The parties agree that the state and federal courts in King County, Washington, shall have exclusive jurisdiction with respect to any dispute arising out of this agreement. This agreement shall be construed and enforced in accordance with the laws of the State of Washington, without giving effect to its choice of law provision.
11. Export Licensing. Licensees shall not use or otherwise export or re-export the Software Products or any underlying or information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limiting the generality of the foregoing, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, or Syria or any other country to which such export or re-export would be contrary to U.S. Department of Commerce Export Administration Regulations or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated nationals or the U.S. Commerce Department’s Denied Agreement, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under control of, or a national or resident of any above-referenced country or list.
12. Government User.
12.1. U.S. GOVERNMENT RIGHTS. If Licensee is an agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, then use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and accompanying documentation, is restricted in accordance with the LIMITED or RESTRICTED rights as described in DFARS 252.227- 7014(a)(1) (JUN 1995) (DOD commercial computer software definition), DFARS 227.7202-1 (DOD policy on commercial computer software), FAR 52.227-19 (JUN 1987) (commercial software clause for civilian agencies), DFARS 252.227-7015 (NOV 1995) (DOD technical data – commercial items clause); FAR 52.227-14 Alternates I, II, and III (JUN 1987) (civilian agency technical data and noncommercial computer software clause); and/or FAR 12.211 and FAR 12.212 (commercial item acquisitions), as applicable. In case of conflict between any of the FAR and DFARS provisions listed herein and this License, the construction that provides greater limitations on the Government’s rights shall control. For purpose of any public disclosure provision under any federal, state or local law, it is agreed that the Licensed Products are a trade secret and a proprietary commercial product and not subject to disclosure.
12.2. If Licensee is an agency, department, or other entity of any State government, the United States Government or any other public entity or funded in whole or in part by the United States Government, the licensee hereby agrees to protect the Software Products from public disclosure and to consider the software Products exempt from any statute, law regulation, or code, including any Sunshine Act, Public Records Act, Freedom of Information Act, or equivalent, which permits public access and/or reproduction or use of the Software Products. If for any reason, the Licensee is unable to comply with this section, or if a court of competent jurisdiction determines that this clause is void and unenforceable, in whole or in part, for any reason, this EULA shall be considered terminated and null and void, in its entirety and any and all copies of the Software Products shall be immediately destroyed.
13. Injunctive Relief. Subscriber acknowledges that copying or unauthorized use of the software or other violations of the terms of this agreement would irreparably injure Zonar, which injury could not be adequately compensated for by money damages. Subscriber agrees that Zonar may seek and obtain injunctive relief for breach or threatened breach of any provision of this agreement. In addition to, and not in limitation of other legal remedies.