PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE EARLY ACCESS DEVELOPMENT TOOLS (AS DEFINED BELOW) OR ANY ACCOMPANYING DOCUMENTATION.
THE TERMS AND CONDITIONS OF THIS EDUCATIONAL USE LICENSE AGREEMENT (“AGREEMENT”) GOVERN YOUR USE OF THE DEVELOPER TOOLS UNLESS YOU AND ZIVA DYNAMICS INC. (“ZIVA”) HAVE EXECUTED A SEPARATE AGREEMENT GOVERNING USE OF THE DEVELOPER TOOLS.
This Early Access Development Tools License Agreement (the “Agreement”), dated as of (“Effective Date”) is made and entered into by and between Ziva Dynamics Inc. a Canadian corporation (“Ziva”), and (“Customer”). Ziva and Customer (each a “Party” and together the “Parties”) agree as follows:
In addition to terms defined elsewhere in this Agreement, the following capitalized terms will have the following meanings:
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a Party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.
“Beta Development Tools” means those Development Tools provided by Ziva to Customer which are not otherwise generally commercially available to all customers, and may be unsupported, error-prone, or otherwise unstable and/or planned for obsolescence by Ziva.
“Claims” means any claims or actions threatened, alleged or filed by any third party together with any related liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees, witness fees and court costs), whether incurred by settlement or otherwise.
“Confidential Information” has the meaning given in Section 3.1.
“Customer Content” means any clipart, photographs, icons, fonts, shapes, animations, video clips, or other content developed by Customer in connection with its use of the Development Tools.
“Development Tools” means the readily-available commercial software, documentation, scripts, metadata or other materials made available by Ziva to Customer under this Agreement (excluding any Third-Party Materials), together with any and all Updates provided by Ziva, if any.
“E-Commerce Transaction” means the online agreement and procurement of software and other products from Ziva by Customer in the session in which this Agreement is reviewed and accepted, and all future transactional sessions related to the Customer and/or the online user account of the Customer on Ziva’s websites and in Ziva’s software interfaces.
“Fees” means the fees, reimbursable expenses, compensation and other amounts payable by Customer under this Agreement, as specified in Exhibit A.
“Feedback” has the meaning given in Section 4.3.
“Intellectual Property Rights” or IPR” means any patent rights, copyrights, rights in trademark, trade secrets, publicity rights, database rights, moral rights or other proprietary or intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise, including all renewals and extensions thereof, all goodwill associated therewith, and all benefits, privileges, rights to sue, recover damages and obtain relief for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.
“License” means the rights granted to Customer in Section 2.2.
“License Period” means the term of any License as specified in Section 2.5.
“Term” means the term of the Agreement, as specified in Section 9.1.
“Third-Party Materials” means any (a) third party open source software or other materials embedded within the Development Tools, and (b) third party software or other materials with which the Development Tools are designed to interact or integrate.
“Trademark” means any name, trade name, brand, logo, service mark, trademark or trade dress.
“Update” means a change to any Development Tools that is commercially released by Ziva during the Term in the form of a patch, bug fix, point release, major release or other update to the version of the Development Tools then licensed by Customer under this Agreement.
“Unauthorized Use” means any access, use, reproduction, distribution, disposition, possession, disclosure or other activity involving any Development Tools or Confidential Information of Ziva that is not expressly authorized under this Agreement or otherwise in writing by Ziva.
“Ziva Parties” means Ziva, its Affiliates, and its and their respective directors, officers, employees and agents.
2.1 Delivery. Ziva will make the Development Tools available to Customer in binary executable form only via the delivery method set forth in Exhibit A. Ziva will make the Beta Development Tools available to Customer in a secure manner to be solely determined by Ziva on a case-by-case basis, depending on the nature of each Beta Development Tools.
2.2 License. Subject to the terms and conditions of this Agreement, Ziva hereby grants Customer during the License Period a limited, non-exclusive, non-transferable (except as authorized under Section 10.6) and non-sublicensable license to: (a) use the Development Tools in binary executable form only solely to develop Customer Content; and (b) make and use a reasonable number of copies of any documentation provided with the Development Tools as reasonably required in connection with the exercise of the rights granted in (a).
2.3 Restrictions. The License does not include any right to do, and Customer will not do or authorize any third party to do, any of the following unless expressly authorized in writing by Ziva: (a) reproduce (except as provided in Section 2.2(b)), license, distribute, publish, publicly perform or display, lease, rent, timeshare, transfer or sell any of the Development Tools; (b) modify or create any derivative works of the Development Tools; (c) reverse engineer, disassemble, decompile or attempt to discover the source code for, or any trade secrets related to, the Development Tools, except and only to the extent that such activity is expressly permitted by applicable law; (d) work around any technical limitations in the Development Tools; (e) remove, alter or obscure any proprietary rights notice on or in the Development Tools; or (f) use the Development Tools other than for their intended purpose.
2.4 Limited Rights. Customer’s rights in the Development Tools will be limited to those expressly granted in this Agreement. Ziva reserves all rights and licenses in and to the Development Tools not expressly granted to Customer under this Agreement.
2.5 License Period. Unless otherwise specified in Exhibit A, the License Period for Development Tools will commence on the Effective Date and continue for a period of 12 months. If the License Period specified in Exhibit A is “perpetual” for any Development Tools, then the License for such Development Tools granted in Section 2.2 will continue until the Term of this Agreement is terminated in accordance with the terms of this Agreement. For any License Period other than a perpetual license, Customer may renew the License Period for an additional License Period by paying the applicable License Fees. If Customer does not pay the applicable renewal Fees for such License Period prior to the expiration thereof, then the applicable License will automatically terminate upon expiration of the then-current License Period.
2.6 No Competing Development. During the Term and for a period of 2 years thereafter, Customer will not, directly or indirectly, use the Development Tools, Confidential Information of Ziva or any other information, know-how, trade secrets or other materials resulting from or learned through any use of the Development Tools or Confidential Information of Ziva to develop any software, products or services that contain or perform the same or substantially similar features, functions or operations as the Development Tools.
2.7 Compliance with Third-Party Terms. The warranties, obligations and liabilities of Ziva and the remedies of Customer with respect to any Third-Party Materials (whether or not embedded in the Development Tools) will be limited to whatever recourse may be available against the third-party provider of such Third-Party Materials and are subject to the restrictions and other limitations as may be set forth in the applicable provisions of the terms applicable to such Third-Party Materials (“Third-Party Terms”). Customer will be solely responsible for its compliance with any Third-Party Terms.
2.8 Support. If indicated in Exhibit A, and subject to Customer’s advance payment of applicable support Fees, Ziva will provide the error correction specified in Exhibit A (“Error Correction”) for the subscription period designated in Exhibit A (“Support Period”). Each Support Period for Error Correction will auto-renew for an additional Support Period unless either Party provides written notice to the other Party of its intent not to renew such Support Period at least 30 days prior to the expiration of the then-current subscription.
2.9 Updates. Customer will install any Update provided by Ziva within a reasonable time after receipt of such Update. Ziva will not provide Support for any version of the Development Tools more than 6 months after a subsequent Update thereto has been released.
2.10 No Support for Beta Development Tools. By definition of this beta partner program, Customer will also be in receipt of unreleased “beta”, “alpha”, and R&D technologies from Ziva, more commonly defined as Beta Development Tools. It must be understood that any of this commercially unreleased software and code is expected to be unstable, not officially supported as a commercial product, and subject to future implementation differences and/or discontinuation. All rights and limitations assigned to Customer in conjunction to the Development Tools within sections 2, 3, and 4, 7, 8, 9, and 10 of this Agreement also extend to any Beta Development Tools provided to Customer specifically under this Agreement or more generally during the Term of this Agreement.
3.1 Definition. “Confidential Information” means: (a) the Development Tools; (b) any business or technical information of Ziva or Customer that, if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure, or, if disclosed orally, is identified as “confidential” or “proprietary” at the time of disclosure, and is summarized in a writing sent by the disclosing Party to the other Party within thirty (30) days of such disclosure; and (iii) the specific terms and pricing set forth in this Agreement. Ziva’s Confidential Information includes all Feedback.
3.2 Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (b) is rightfully known by the receiving Party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information; or (d) the receiving Party rightfully obtains from a third party without restriction on use or disclosure.
3.3 Use and Disclosure Restrictions. Each Party will not use the other Party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third Party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such Party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors. In addition, each Party may disclose the terms and conditions of this Agreement: (a) as required under applicable securities regulations; and (b) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party.
4.1 Ziva Ownership. Except as expressly granted in this Agreement, as between Ziva and Customer, Ziva owns all right, title and interest in and to the Development Tools, including all IPR therein.
4.2 Customer Ownership. Except as expressly granted in this Agreement, as between Ziva and Customer, Customer owns all right, title and interest in and to the Customer Content, including all IPR therein.
4.3 Feedback. From time to time, the Customer may provide Ziva with comments and feedback regarding its experience using the Development Tools and suggestions for improvements (collectively “Feedback”). Customer acknowledges and agrees that all Feedback will be the sole and exclusive property of Ziva, and the Customer agrees to assign, and does hereby irrevocably assign, to Ziva all of its rights, title and interest in and to all such Feedback, including, without limitation, all IPR therein. At Ziva’s request and expense, Customer will take such action (including the execution, delivery and filing of documents and the provision of information, documents and testimony) as Ziva may reasonably request to assist Ziva to acquire, perfect and maintain its IPR and other legal protections for the Feedback.
4.4 Trademarks. Customer hereby grants Ziva a license to use the name and logo of Customer and Customer Content in Ziva’s marketing and promotional materials to indicate Customer’s use of the Development Tools. Each Party reserves all right, title and interest (including any IPR) that it may have in any Trademark and associated goodwill. Except as set forth in this Section 4.4, this Agreement does not grant to either Party any license or other right with respect to any Trademark of the other Party.
4.5 Additional Protection of IPR. Customer will not infringe or violate, and will take appropriate steps and precautions for the protection of, Ziva’s IPR referred to in Section 4.1. Without limiting the generality of the foregoing, Customer will (a) protect the Development Tools from and against Unauthorized Use, (b) immediately notify Ziva of any Unauthorized Use that comes to Customer’s attention, and (c) take all steps reasonably necessary to terminate any Unauthorized Use that comes to Customer’s attention, including by retrieving any copy of the Development Tools in the possession or control of any person or entity engaging in such Unauthorized Use.
5.1 Fees. Customer will pay Ziva the Fees in accordance with the payment terms specified in Section 5.2. All amounts payable under this Agreement are denominated in U.S. Dollars and Customer will pay all such amounts in U.S. Dollars. Except as otherwise set forth in Exhibit A, Ziva reserves the right to increase the Fees for Development Tools once annually with at least 30 days’ notice to Customer. Ziva also reserves the right to create alternative product definition and alternate Fee structures applicable to any of the Beta Development Tools.
5.2 Payment Terms. Except as otherwise set forth in Exhibit A: (a) Ziva will issue invoices for amounts payable to Ziva under this Agreement; and (b) payment will be due by Customer to Ziva upon receipt of these invoices. Unless otherwise set forth on the applicable invoice, payment will be made at the address set forth in the signature block below.
5.3 Taxes. The amounts payable to Ziva under this Agreement do not include any duties, taxes, fees or other amounts assessed or imposed by any governmental authority, other than taxes imposed on Ziva’s net income. Customer will pay or reimburse Ziva for all such amounts upon demand or provide certificates or other evidence of tax exemption.
5.4 Costs. Customer will bear any and all costs and expenses it incurs in the development of the Customer Content.
6.1 Limited Warranty. Ziva warrants that the Development Tools will operate in material conformity with the then-current standard documentation under normal use (“Limited Warranty”) for a period of 90 days from the date of initial delivery of the Development Tools (“Warranty Period”). If the Development Tools do not perform in accordance with the Limited Warranty during the Warranty Period, upon written notice by Customer and verification of any such nonconformity, Ziva will use reasonable efforts to correct any deficiencies in the Development Tools so that they perform in accordance with the Limited Warranty. The foregoing remedy is Customer’s sole and exclusive remedy, and Ziva’s sole obligation, in the event of nonconformity of the Development Tools with the Limited Warranty. Customer will provide all information reasonably requested to enable Ziva to cure the nonconformity. The Limited Warranty specifically excludes: (a) minor defects or errors not material to the core functionality of the Development Tools; and (b) defects or deficiencies resulting from: (i) misuse of the Development Tools; (ii) modifications to the Development Tools not made by Ziva; (iii) use of the Development Tools with items not provided by Ziva other than the hardware and operating system software for which the Development Tools were designed; or (iv) errors, defects or deficiencies in any data or other items furnished by Customer. Ziva will not be responsible under the Limited Warranty for correcting problems if Customer fails to implement any correction or Update made available by Ziva.
6.2 General. EXCEPT FOR THE LIMITED WARRANTY SPECIFIED IN SECTION 6.1: (A) THE DEVELOPMENT TOOLS AND THIRD-PARTY MATERIALS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED; (B) ZIVA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; AND (C) ZIVA DOES NOT REPRESENT OR WARRANT THAT THE DEVELOPMENT TOOLS OR THIRD-PARTY MATERIALS ARE (I) ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE, (II) FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (III) SUFFICIENT FOR DEVELOPMENT OF CUSTOMER CONTENT. CUSTOMER SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DEVELOPMENT TOOLS. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR BACKING UP ANY CUSTOMER CONTENT.
7.1 Indemnification by Customer. Customer will defend and indemnify the Ziva Parties from and against any Claims arising out of or related to: (i) the Customer Content; or (ii) Unauthorized Use of the Development Tools.
7.2 Indemnification By Ziva. Ziva will defend and indemnify Customer, its Affiliates, and its and their respective directors, employees and agents, from and against any Claims that Customer’s use of the Development Tools in accordance with the terms of this Agreement infringes any United States copyright or patent right of any third party. Ziva’s indemnity obligations under this Section 7.2 do not apply to any infringement resulting from any: (a) modification to the Development Tools caused by Customer or any third party on Customer’s behalf; (b) combination of the Development Tools with any other products, services or content provided by Customer or any third party; or (c) use of the Development Tools, if the infringement would have been avoided by the use of a current release or Updated version of the Development Tools which Ziva has made available to Customer.
7.3 Indemnification Procedure. If a Party (the “Indemnified Party”) desires to enforce the indemnification obligations of the other Party (the “Indemnifying Party”) under this Agreement with respect to any Claim thereunder, the Indemnified Party will give the Indemnifying Party written notice of the Claim promptly after the Indemnified Party receives notice of the same, and cooperate with the Indemnifying Party in connection with the defense, settlement and satisfaction of the same; provided, however, that the Indemnifying Party pays or reimburses all of the costs and expenses reasonably incurred by the Indemnified Party in connection with any assistance requested under this Section 7.3. The Indemnified Party may participate in the defense of any Claim by counsel of its own choosing, at its cost and expense. The Indemnifying Party will not settle the Claim without the prior written consent of Indemnified Party, if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of Indemnified Party or its Affiliates or otherwise requires the Indemnified Party or its Affiliates to take or refrain from taking any material action (such as the payment of fees).
7.4 Infringement Claim. If Ziva reasonably believes that the Development Tools will be subject to an indemnity Claim for infringement under Section 7.2, Ziva may use commercially reasonable efforts to either: (a) acquire the right for Customer to continue to use the Development Tools in accordance with the License; or (b) provide an Update or other Improvement to avoid the infringement. If Ziva reasonably determines that neither (a) or (b) above are commercially reasonable, then Ziva may terminate the Term, effective on the date of the notice of termination. The indemnity and other remedies provided in this Section 7 constitute Ziva’s sole obligation and liability and Customer’s exclusive remedy for or related to any Claim contemplated by Section 7.2.
8.1 Limitation on Type of Damages. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 3 (CONFIDENTIAL INFORMATION), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Maximum Damages. EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 3 (CONFIDENTIAL INFORMATION), IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO ZIVA UNDER THIS AGREEMENT.
9.1 Term. The Term will commence on the Effective Date and will continue thereafter unless and until terminated in accordance with the terms of this Agreement.
9.2 Termination for Convenience. Customer may terminate the Term at any time upon not less than thirty (30) days’ prior written notice to Ziva. In the event of this Termination for Convenience, Customer will not be entitled to any refund whatsoever, and any use following this termination would be considered to be Unauthorized Use.
9.3 Termination for Material Breach. In the event of a breach or default under this Agreement by a Party, the other Party may terminate the Term by giving the breaching Party written notice of the breach or default and the non-breaching Party’s intention to terminate the Term. In such event, the Term will automatically terminate ten (10) days after delivery of such notice unless, prior to the expiration of such ten (10) day period, the breaching Party cures the breach or default.
9.4 Termination Upon Expiration of License Periods. The Term of this Agreement will immediately terminate upon the expiration of all License Periods. For clarity, this termination provision will not apply to the extent Customer obtains any Licenses that are subject to a perpetual License Period, as specified in Exhibit A.
9.5 Effect of Termination. Upon termination of the Term in accordance with the terms of this Agreement, the License for any Development Tools will terminate and Customer will immediately: (a) cease using such Development Tools; (b) delete all copies of such Development Tools from all machine readable media and electronic memory in Customer’s possession or control; and (c) deliver to Ziva a certificate executed by an officer of Customer certifying that it no longer has any copies of such Development Tools in its possession or control. Any Termination of the Term will be without prejudice to any other rights or claims that a Party may have under this Agreement.
9.6 Survival. The rights and obligations of each Party under Sections 2.6, 3, 4, 5.1, 6.2, 7, 8, 9.5 and 10 will survive any termination of the Term.
10.1 Independent Contractor. Each Party is an independent contractor in the performance of this Agreement. Without limiting the generality of the foregoing, each Party will properly withhold and pay, or ensure that a third party properly withholds and pays for, all federal income, workers’ compensation, employer’s liability, pension, deferred compensation, welfare, insurance and other employee taxes or benefits payable to or on behalf of any person engaged by such Party to perform any of its obligations under this Agreement. Neither Party will have, by virtue of this Agreement, any right, power or authority to enter into any contract or to assume or incur any other commitment or obligation in the name of or on behalf of, to act as the agent or representative of, or to otherwise bind the other Party.
10.2 Notices. Any notices required or permitted under this Agreement will be given in writing, in English, and must be sent by post or email. Notice by email will be sent to Customer at [customer_email] and to Ziva at email@example.com, and notice by post will be sent to each Party’s address in the signature block below. Notice will be deemed given on receipt, as verified by written or automated receipt or by electronic log (as applicable). Either Party may change such notice address by giving the other Party notice of such change in accordance with this Section 10.2.
10.3 Compliance With Laws and Agreements. Each Party will comply with all applicable laws, regulations, rules and orders and all agreements with third parties related to such Party’s performance of this Agreement. Without limiting the generality of the foregoing, the Development Tools may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations (50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries. Except as authorized by law, Customer will not export or re-export the Development Tools to any country, or to any person, entity, or end-user subject to U.S. export controls, including persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration’s Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals.
10.4 Publicity. Except as permitted by Section 4.4, neither Party will issue any press release or make any public statements regarding this Agreement or the subject matter herein without the prior written consent of the other Party.
10.5 Nonwaiver. Neither Party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
10.6 Assignment. Neither Party may assign this Agreement, including any of its rights or obligations under this Agreement, unless the other Party consents in writing, provided that either Party may assign this Agreement without consent to (a) any of its subsidiaries, affiliates, joint ventures, partnerships and limited liability companies in which it has a majority interest; or (b) a successor to all or substantially all of its business or assets relating to this Agreement, whether by sale, merger, operation of law or otherwise. Assignment will not relieve the assigning Party of its obligations under the assigned agreement. Any attempted transfer or assignment in violation of this Section 10.6 shall be void, and, in the event of any such assignment or attempted assignment by Customer, Ziva shall have the right to immediately terminate the Term.
10.7 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of events beyond the reasonable control of such Party.
10.8 Severability. If any provision of this Agreement is held by a court to be illegal, invalid, or unenforceable, the rest of this Agreement will be legal, valid, and enforceable to the fullest extent possible.
10.9 Cumulative Remedies. The rights and remedies of Ziva set forth in this Agreement are in addition to and do not in any way limit any other rights and remedies afforded to Ziva by law or otherwise.
10.10 Attorneys’ Fees. In any action to enforce any right or remedy under this Agreement, to recover any damages or other relief on account of any breach of or default under this Agreement, or to interpret any provision of this Agreement, the substantially prevailing Party will be entitled to recover its costs and expenses (including reasonable attorneys’ fees) reasonably incurred in connection with such action or any appeal thereof.
10.11 Governing Law; Jurisdiction and Venue. Any dispute between the Parties will be governed by this Agreement and the laws of the Province of British Columbia, Canada, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Any suit or proceeding arising out of or relating to this Agreement will be brought in the federal or provincial courts, as applicable, in Vancouver, British Columbia, and each Party irrevocably submits to the jurisdiction and venue of such courts.
10.12 Interpretation; Entire Agreement. As used in this Agreement, the term “include” and “including” are meant to be inclusive and will be deemed to mean “include without limitation” or “including without limitation.” This Agreement (including any attached Exhibits) sets forth the entire agreement, and supersedes any and all prior proposals, understandings and agreements, between the Parties with regard to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be valid unless set forth in a written instrument signed by the Party to be bound thereby.
The pricing terms for participation in the Early Access Development Tools program will either be defined during the E-Commerce Transaction or separately agreed to by Ziva. In the event that the pricing is determined outside of the E-Commerce Transaction, Ziva will provide Customer with written confirmation of pricing and/or update the price associated with the E-Commerce Transaction in the Customer online account. The following terms and license information will be applied to any purchases or subscriptions.
For all purchases made in Canada, CAD pricing will be applied with the appropriate tax calculation. For all purchases made by customers outside of Canada, USD pricing will be applied.
Ziva Character Platform (“ZCP”) - Floating Single License Subscription: 12 Month subscription per user, with terms of service acceptance and license renewal automatically occurring after 365 days unless otherwise agreed to between Customer and Ziva. The ZCP offering provided to Customer may include some or all of the following packages as described in written confirmation from Ziva, and these will be subject to change from time-to-time at the sole discretion of Ziva:
Beta Development Tools:
Ziva VFX Maya Plug-in Batch License (non-interactive UI): Pricing for individual licenses starting at $720 for annual subscription, $80 monthly, with volume price discounts as presented to the Customer upon request. Customer can also refer to the quoting engine available online at https://store.zivadynamics.com.
Initial Fees are payable upon the Effective Date of the Agreement.
License Subscription Renewal Fees are payable prior to expiration of the then-current License Period.
All applicable taxes and currency are generated based on shipping location defined during the E-Commerce Transaction or otherwise specified by the Customer.
For purposes of this Exhibit A, “Error Correction” means that Ziva will use commercially reasonable efforts during the Term to provide corrections or workaround solutions for any verifiable problem reported and determined to be in the Development Tools, except to the extent that such problem results from: (a) misuse of the Development Tools; (b) modifications to the Development Tools not made by Ziva; (c) use of the Development Tools with items not provided by Ziva other than the hardware and operating system software for which the Development Tools was designed; or (d) errors, defects or deficiencies in any data or other items furnished by Customer. Ziva will not be responsible for correcting problems if Customer fails to implement any correction or Update made available by Ziva.
Ziva software procured through the E-Commerce Transaction will be made available to Customer securely through Ziva’s website and Customer user accounts.