Last updated: August 23, 2023

1. INTELLECTUAL PROPERTY; LICENSE

1.1. Ownership of Zenitech Materials

All Intellectual Property Rights in Zenitech Materials, Solutions, Deliverables, Documentation, and Services belong exclusively to Zenitech and its licensors. Customer will not (and will not allow any third party to): (i) disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Zenitech Materials (except to the limited extent that applicable law prohibits reverse engineering restrictions); (ii) sell, resell, distribute, sublicense or otherwise transfer, the Zenitech Materials, or make the functionality of the Zenitech Materials available to any other party through any means (unless otherwise Zenitech has provided prior written consent), (iii) without the express prior written consent of Zenitech, conduct any benchmarking or comparative study or analysis involving the Zenitech Materials (“Benchmarking”) for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of Solutions to interoperate with Customer’s internal computer systems; (iv) disclose or publish to any third party any Benchmarking or any other information related thereto; (v) use the Zenitech Materials or any Benchmarking in connection with the development of products, services or subscriptions that compete with the Zenitech Materials; or (vi) reproduce, alter, modify or create derivatives of the Zenitech Materials. Between Customer and Zenitech, Zenitech shall retain all rights and title in and to any Indicators of Compromise Zenitech developed by or for Zenitech in the course of providing Solutions or performing Services. Zenitech may audit Customer’s use of Offerings to ensure compliance with the terms of this Agreement.

1.2. Deliverables

Deliverables License. Subject to payment of all applicable fees and subject to the terms of this Agreement, Customer shall have a perpetual, non-exclusive, nontransferable, right and license to (unless otherwise set forth in a Statement of Work) use, display and reproduce the Deliverables for its internal business purposes. Deliverables may not be shared with any third party other than law enforcement agencies.

1.3. Solutions License.

Subject to Customer’s timely payment of applicable fees, and subject to the terms of this Agreement, Customer shall have a limited, non-exclusive, nontransferable, right and license to access and use the Solutions during the relevant Subscription Term for its internal business purposes as set forth in the applicable Schedule, and as set forth in any applicable service description related to the Solution. Customer will maintain the copyright notice and any other notices that appear on the Solutions, including any interfaces related to the Solutions.

2. WARRANTIES

2.1. Services and Solutions Warranty

Zenitech warrants to Customer that Services will be performed and Solutions will be provided in a professional manner in accordance with industry standards for like services and solutions, respectively. If Customer believes the warranty stated in this Section has been breached, Customer must notify Zenitech of the breach no later than thirty (30) days following the date of the breach, and Zenitech will promptly correct the affected Solution or re-perform the Services, at Zenitech’s expense. The warranties stated in this Section 7 and each Schedule shall not apply if the Offering has: (i) been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling or use contrary to any instructions issued by Zenitech; (ii) been repaired or altered by persons other than Zenitech; (iii) not been installed, operated, repaired and maintained in accordance with the Documentation; or (iv) been used with any third party software or hardware which has not been previously approved in writing by Zenitech. If during the applicable warranty period: (a) Zenitech is notified promptly in writing upon discovery of any error in a Solution, including a detailed description of such alleged error; (b) if applicable, such Solution is returned, transportation charges prepaid, to Zenitech’s designated manufacturing facility in accordance with Zenitech’s then-current return procedures, as set forth by Zenitech from time to time; and (c) Zenitech’s inspections and tests determine that the Solution contains errors and has not been subjected to any of the conditions set forth in 2.1(i)-(iv) above, then, as Customer’s sole remedy and Zenitech’s sole obligation under the foregoing warranty, Zenitech shall, at Zenitech’s option, repair (or correct the error, as applicable) or replace without charge such Solution. Any Solution that has either been repaired or replaced under this warranty shall have warranty coverage for the remaining warranty period. Replacement parts used in the repair of a Product may be new or equivalent to new.

2.2. Solutions Warranty

Zenitech warrants to Customer the Solution Subscriptions will be provided in a professional manner in accordance with industry standards for similar subscriptions. If Customer believes the warranty stated in this Section has been breached, Customer must notify Zenitech of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and Zenitech will promptly correct the non-conformity, at Zenitech’s expense.

2.3. Remedies Exclusive

Except for any Service Level Credits described in applicable Schedules, the remedies stated in Sections 2.1-2.3 above are the sole remedies, and Zenitech’s sole obligation, with respect to Products, Subscriptions and Services that fail to comply with the foregoing warranties.

2.4. Disclaimer of Warranties

EXcept for the express warranties set forth herein, all solutions, zenitech materials, deliverables and services are provided on an “as is” basis without any warranty whatsoever. Zenitech and its suppliers expressly disclaim, to the maximum extent permissible under applicable law, all warranties, express, implied and statutory, including without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy, noninfringement, or arising from course of performance, dealing, usage or trade. Zenitech also makes no warranty regarding noninterruption of use or freedom from bugs, and makes no warranty that solutions, zenitech materials, deliverables, services or subscriptions will be error-free.

3. INFRINGEMENT INDEMNITY

3.1. Indemnity

Zenitech shall defend customer, and its officers, directors and employees, against any third party action alleging that the zenitech materials infringes a valid u.S. Patent or copyright issued as of the date of delivery or performance, as applicable, and zenitech shall pay all settlements entered into, and all final judgments and costs (including reasonable attorneys’ fees) finally awarded against such party in connection with such action. If the zenitech materials, or parts thereof, become, or in zenitech’s opinion may become, the subject of an infringement claim, zenitech may, at its option: (i) procure for customer the right to continue using the applicable zenitech materials; (ii) modify or replace such zenitech materials with a substantially equivalent non-infringing zenitech materials; or (iii) require the return of such zenitech materials or cease providing affected solution subscriptions, deliverables or services, and refund to customer a portion of any pre-paid fees for solution subscriptions, pro rated for any unused subscription term, and with respect to services, any pre-paid fees for services that have not been delivered. This section 3.1 states the entire liability of zenitech and customer’s sole remedy with respect to any infringement of intellectual property rights by the offerings, zenitech materials, or deliverables.

3.2. Exceptions

Zenitech shall have no indemnification obligations with respect to any action arising out of: (i) the use of any Solution Subscription, Deliverable, or Service, or any part thereof, in combination with software or other products not supplied by Zenitech; (ii) any modification of the Solution Subscriptions, Deliverables, or Services not performed or expressly authorized by Zenitech; or (iii) the use of any the Solution Subscriptions, Deliverables, or Services other than in accordance with this Agreement and applicable Documentation.

3.3. Indemnification Process

The indemnification obligations shall be subject to Customer: (i) notifying Zenitech within ten (10) days of receiving notice of any threat or claim in writing of such action; (ii) giving Zenitech exclusive control and authority over the defense or settlement of such action; (iii) not entering into any settlement or compromise of any such action without Zenitech’s prior written consent; and (iv) providing reasonable assistance requested by Zenitech.

4. LIMITATION OF LIABILITY

4.1. Consequential Damages Waiver

Except for liability arising under the indemnification obligations set forth in section 8 (infringement indemnity), in no event will zenitech be liable for any special, incidental, consequential or exemplary damages of any kind, including but not limited to any lost profits and lost savings, however caused, whether for breach or repudiation of contract, tort, breach of warranty, negligence, or otherwise, whether or not zenitech was advised of the possibility of such loss or damages.

4.2. Limitation of Monetary Damages

Except for liability arising under the indemnification obligations set forth in section 8 (infringement indemnity), and notwithstanding any other provisions of this agreement or any order or statement of work, zenitech’s total liability arising out of this agreement, the offerings, the zenitech materials and deliverables shall be limited to the total amounts received by zenitech for the relevant offerings during the twelve (12) months immediately preceding the first occurrence of the events giving rise to such liability.

4.3. Applicability

The limitations and exclusions contained herein will apply only to the maximum extent permissible under applicable law, and nothing herein purports to limit either party’s liability in a manner that would be unenforceable or void as against public policy in the applicable jurisdiction.

5. COMPLIANCE WITH LAW; U.S. GOVERNMENT RESTRICTED RIGHTS

5.1. Compliance with Law

Each party will comply with all laws and regulations applicable to it with respect to the Offerings, including all export control regulations and restrictions that may apply to the Offerings. Customer will not export any Zenitech Materials to any countries embargoed by the United States (currently including Cuba, Iran, North Korea, Sudan and Syria). Each Party acknowledges that it is familiar with and will comply with the provisions of the U.S. Foreign Corrupt Practices Act ("the FCPA") and the U.K. Bribery Act of 205 (“UKBA”), as applicable, and each party agrees that no action it takes will constitute a bribe, influence payment, kickback, or other payment that violates the FCPA, the UKBA, or any other applicable anticorruption or anti-bribery law.

5.2. U.S. Government Restricted Rights

The Offerings, Deliverables and Documentation are “commercial items”, “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. All Offerings and Zenitech Materials are and were developed solely at private expense. Any use, modification, reproduction, release, performance, display or disclosure of the Offerings, Zenitech Materials and Documentation by the United States Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.