ATTENTION! THIS DEVELOPMENT TOOLS LICENSE AGREEMENT IS A LEGALLY BINDING AGREEMENT. YOU SHOULD CAREFULLY READ THIS DEVELOPMENT TOOLS LICENSE AGREEMENT PRIOR TO ACCESSING OR USING THE SOFTWARE. BY ACCEPTING THIS DEVELOPMENT TOOLS LICENSE AGREEMENT, YOU ARE REPRESENTING THAT YOU HAVE AUTHORITY TO ENTER INTO THIS DEVELOPMENT TOOLS LICENSE AGREEMENT ON BEHALF OF YOUR COMPANY (OR OTHER ENTITY). IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT AGREE WITH THE TERMS OF THIS DEVELOPMENT TOOLS LICENSE AGREEMENT, DO NOT USE THE SOFTWARE.
This Development Tools License Agreement (“Agreement”) is made by and between Zuora, Inc., a Delaware corporation with offices at 101 Redwood Shores Parkway, Redwood City, CA 94065 (“Zuora”) and the entity accepting this Agreement (“you” or “Licensee”). This Agreement will be effective when accepted by you (“Effective Date”).
The parties hereby agree as follows:
(a) “Documentation” means the printed or online written reference material provided in relation to the Software, including, instructions, testing guidelines, and end user guides.
(b) “Feedback” means suggestions, comments, corrections, ideas, enhancement or feature requests or other information to Zuora with respect to the Software.
(c) “Intellectual Property Rights” means all intellectual property rights, including, patent, copyright, trademark, and trade secret, recognized in any jurisdiction worldwide, whether perfected or not, and any similar and other proprietary rights.
(d) “MSA” means the master services agreement or other contractual arrangement between you, or your employer, and Zuora related to your use of Zuora’s products and services.
(e) “Open Source Software” means code identified as open source code or as otherwise being subject to open source license terms.
(f) “Performance Data” means information submitted by Licensee to Zuora in connection with the Software, or otherwise gathered by Zuora in connection with your use of the Software, including any benchmark information.
(g) “Service” will have the meaning set forth in MSA.
(h) “Software” means the Zuora branded software, tool, SDK, API or other technology where this Agreement is included or otherwise presented to you.
(i) “Third Party Software” means a software application that is provided by Licensee or a third party.
(j) “Updates” means a modification, error correction, bug fix, new release, or other update to or for the Software.
(a) License. Pursuant to the terms set forth herein, you may download and use the Software solely in connection with your authorized use of the Service as set forth in the MSA. To the event you request technical support for the Software on developer forums hosted by Zuora, Zuora will use reasonable efforts to respond to such requests in a timely manner.
(b) Term. This Agreement will end after the earlier of (i) the period specified during your registration for Software, (ii) immediately upon termination of the MSA, or (iii) upon notice of termination by Zuora (such period will be called the “Term”). Either party may terminate this Agreement at any time for any reason by providing the other party prior written notice. Upon any expiration or termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate, and Licensee shall immediately cease using, and will destroy the Software, Documentation, and all other tangible items in Licensee’s possession or control that contain Confidential Information. The following sections will survive expiration and termination: 2(e) and 3 - 7.
(c) Restrictions. You acknowledge and agree that (i) the Software may include faults and errors; (ii) your use of the Software may not be uninterrupted or error free, and (iii) Zuora is not obligated to provide technical support for, or updates to, Software. Notwithstanding the foregoing, if Zuora does make available updated version of the Software, you will implement and use such updated Software. The Software is not subject to the MSA. Without limiting the foregoing, you acknowledge that any indemnification, support, security commitments, or uptime commitments set forth in the MSA do not apply to the Software. Except to the extent contrary to any applicable laws, you will not, and will not permit any third party to, sublicense, rent, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Software or accompanying Documentation.
(d) Feedback. Customer agrees that such Feedback is given voluntarily, and that Zuora may use, disclose, reproduce, modify, commercialize, license, distribute and exploit the Feedback freely, in its sole discretion, without any restriction or obligation of any kind.
(e) Ownership. Zuora shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Software and any derivative works thereof. Subject only to the limited license expressly set forth in Section 2(a) hereof, Licensee does not acquire any other rights, express or implied, in the Software. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO ZUORA.
(f) Third Party Software. The Software may operate or integrate with Third Party Software, for which. Licensee is responsible for obtaining any necessary licenses.
3. CONFIDENTIALITY. "Confidential Information" means the Software, all information regarding the Software (including any trade secrets, know-how, inventions, techniques, processes, and algorithms embodied in the Software), Documentation, Performance Data, Zuora products, product roadmaps, and other technical, business, financial and product development plans, forecasts and strategies, and other information provided by Zuora to Licensee under this Agreement, whether disclosed orally, in writing, or by examination or inspection, other than information that Licensee can demonstrate (i) was already known to Licensee, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to Licensee; (iii) became generally available in the public domain after disclosure other than through any act or omission of Licensee; (iv) was subsequently lawfully disclosed to Licensee by a third party without any obligation of confidentiality; or (v) was independently developed by Licensee without use of or reference to any information or materials disclosed by Zuora or its suppliers. If Licensee wishes to disclose to Zuora any information under this Agreement that Licensee considers proprietary or confidential to Licensee (“Licensee Information”), then Licensee agrees such disclosure will be governed by a separate non-disclosure agreement (“NDA”) by and between the parties. If Licensee is required to disclose Confidential Information by applicable law or court order, Licensee shall notify Zuora of the required disclosure promptly in writing and shall cooperate with Zuora in any lawful action to contest or limit the scope of the required disclosure. Licensee shall not use any Confidential Information for any purpose other than as expressly authorized under this Agreement. In no event shall Licensee use the Software or any Confidential Information to develop, manufacture, market, sell, or distribute any product or service. Licensee shall not disclose any Confidential Information to any third party. Licensee shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of such Confidential Information and will limit disclosure to employees with a need to know.
The Software and all performance data and test results, including benchmark test results (collectively “Performance Data”), relating to the Software is the Confidential Information of Zuora. You agree that Zuora may collect Performance Data in connection with your use of the Software.
4. LIMITATION OF LIABILITY. THE TOTAL LIABILITY OF ZUORA AND ITS LICENSORS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED $100. IN NO EVENT SHALL ZUORA OR ITS LICENSORS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING WITHOUT LIMITATION, TORT, STATUTE, CONTRACT OR OTHER), EVEN IF ZUORA AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5. WARRANTY DISCLAIMER. IT IS UNDERSTOOD THAT THE SOFTWARE AND DOCUMENTATION MAY CONTAIN ERRORS AND ARE PROVIDED SOLELY FOR THE PURPOSES EXPRESSLY PERMITTED UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SOFTWARE AND ANY OPEN SOURCE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, ZUORA AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
6. OTHER PROVISIONS
(a) Governing Law, Injunctive Relief, Waiver of Jury Trial. This Agreement shall be governed exclusively by the laws of the State of California, without regard to conflicts of laws rules. The state and federal courts located in San Mateo County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of those courts for such purposes.
(b) Remedies. You agree that a material breach of this Agreement by you may cause irreparable harm and a remedy at law may be inadequate. In addition, to any and all remedies available at law, Zuora will be entitled to injunctive relief or other equitable remedies in the event of a threatened or actual violation of any of the provisions of this Agreement.
(c) Export, Compliance with Laws. The Software is of United States origin and is made available subject to the U.S. Export Administration Regulations. You agree to comply with all applicable laws, rules or regulations, including export, privacy and data protection laws, related to your use of the Software.
(d) Modification. This is the entire agreement between the parties relating to the subject matter hereof and all other terms, representations, negotiations, arrangements or understandings are superseded and replaced by this Agreement. Zuora may modify this Agreement without notice to you, including by posting an updated version of this Agreement on its website. Otherwise, this Agreement may not be modified or amended except as agreed by the parties in writing. The terms of this Agreement are limited to this subject matter and will not affect any other agreement between Zuora and you, your employer, or any other company, including the MSA.
(e) Severability, Waiver. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. Any waiver of these terms must be in writing and signed by the waiving party to be effective.
(f) Independent Contractor. You acknowledge you and Zuora are independent contractors and nothing in this Agreement shall be construed as creating a partnership, agency or any form of joint enterprise based on this Agreement or your authorized use of the Software.
(g) Assignment. Licensee shall not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise without the prior written consent of Zuora. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
(h) Notices. All notices shall be in writing and deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile or after sending by email. Notices to Zuora shall be addressed to the attention of firstname.lastname@example.org.