ZAGENO Marketplace Customer Agreement

ZAGENO Marketplace Customer Agreement

These ZAGENO Marketplace Customer Agreement (“Terms and Conditions”) is incorporated by reference into any order form validly executed by authorized representatives of ZAGENO and the customer (“Customer”) that references this Terms and Conditions (an “Order Form”) to form the “Agreement.” These Terms and Conditions apply to any attached Order Form and all subsequent Order Forms to the exclusion of any other terms or conditions that either party seeks to impose or incorporate or that are implied by course of dealing. In the event of any conflict between these Terms and Conditions and any Order Form, the terms and conditions in such Order Form will govern solely with respect to such Order Form.

1      RIGHT TO USE Marketplace SERVICES

1.1  Services. Subject to the terms and conditions of this Agreement, ZAGENO will (a) make available to Customer the Marketplace and Documentation, as indicated below, (b) perform the Configuration Services as indicated on an Order Form, and (c) perform other mutually agreed services in an Order Form (collectively, the “Services”) during the Term and pursuant to this Agreement.

1.2  Marketplace. Subject to the terms and conditions of this Agreement, ZAGENO hereby grants Customer a limited, nonexclusive, nontransferable, non-sublicensable (except as expressly set forth herein) right to access and use the Marketplace and Documentation during the Term solely for its internal business and procurement purposes. “Marketplace” means ZAGENO’s proprietary e-commerce marketplace and procurement platform and associated software and technology, as may be updated or modified, which is made available by ZAGENO to Customer pursuant to an Order Form. “Documentation” means ZAGENO’s then current published guides, manuals and on-line help for the Marketplace (which may be provided in paper, digital memory storage device, over the web or via online help).

1.3  Limitations.

a          Customer will not provide access to the Marketplace to any person who is not an employee or contractor of Customer (each, an “Authorized User”). ZAGENO will enable account creation for the designated list of Authorized Users’ provided by Customer to ZAGENO in connection with the Configuration Services. Customer is solely responsible for all uses of accounts linked to Customer’s or its Authorized Users’ login credentials and its and their use of the Marketplace, and for ensuring that all Authorized Users’ use of the Marketplace complies with this Agreement. Customer and its Authorized Users are responsible for maintaining the confidentiality of their respective password and account.

b          Except as expressly permitted hereunder Customer will not, and will not permit any third party, to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Marketplace; (ii) modify, translate or create derivative works based on any of the Marketplace or Documentation; (iii) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Marketplace or Documentation; (iv) use any of the Marketplace or Documentation for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Marketplace or their related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (vi) remove or obscure any proprietary notices or labels of ZAGENO or its suppliers on any of the Marketplace or Documentation; (vii) access or use the Marketplace or Documentation (or any part thereof) to build a competitive or substantially similar product or service; or (viii) use the Marketplace or the Documentation other than for its legitimate business purposes as contemplated by this Agreement.

1.4  Third-Party Software.  The Marketplace may enable access to or integration with certain third-party software (“Third-Party Software”) at the Customer’s request to enable their use by the Customer.  Accordingly, Customer may elect, via the Marketplace, to enable the access to or integration with a Third-Party Software that is permitted via the Marketplace.  ZAGENO may share with each such Third-Party Software all Customer Data that is requested or otherwise accessed by such Third-Party Software.  Any data, information or other materials collected via or received by ZAGENO from any Third-Party Software will be deemed Customer Data.

2      MARKETPLACE

2.1  Purchasing. Customer can place orders for products and services (“Products”) offered and supplied by third-party suppliers or vendors (“Suppliers”) on the Marketplace. Orders for Products placed by Customer on the Marketplace are “Product Orders”.

2.2  Product Orders. All Product Orders will be fulfilled by Suppliers; Products are supplied by Suppliers and shipped directly from Supplier to Customer.

a          Certain Suppliers may be indicated as “ZAGENO Suppliers” on the Marketplace. For any Product Order placed on the Marketplace for Products supplied by a ZAGENO Supplier, ZAGENO may be listed as the vendor of record for such Products, and Customer will pay ZAGENO directly for such Products.

b          Suppliers not listed on the Marketplace as a ZAGENO Suppliers are “Procurement Service Suppliers.” A Product Order placed on the Marketplace for Products supplied by a Procurement Service Supplier is deemed a request by Customer for ZAGENO to submit a purchase order for such Product Order to the applicable Procurement Service Supplier on behalf of Customer (such Product Order, a “Procurement Service Order”). Solely if and to the extent that Customer places a Procurement Service Order on the Marketplace, Customer hereby appoints ZAGENO as its authorized agent to, in accordance with any Procurement Service Order and the Authorization Form set forth on Exhibit B (the “Authorization Form”), and in Customer’s name and on Customer’s behalf, submit a purchase order to the Procurement Service Supplier with or for Customer’s account, and to pay the Procurement Service Supplier for such Procurement Service Order. Such appointment and authorization will be effective during the Term and revocable only upon the mutual written agreement of both parties that is validly executed by authorized representatives thereof. For Procurement Service Orders, the applicable Procurement Service Supplier may be listed as the vendor of record for such Products, and Customer will remit the appropriate payment for such Products to ZAGENO who will pay the Procurement Service Supplier for such Products on Customer’s behalf. Customer may only revoke, amend or limit the Authorization Form upon 90 days’ written notice to ZAGENO. Such revocation, amendment, or limit may restrict Customer from purchasing Products from Procurement Service Suppliers. The authorization set out in the Authorization Form shall terminate following the Term.

2.3  Order Confirmation. All Product Orders are subject to the confirmation of the applicable Supplier. A Product Order is not confirmed until ZAGENO provides written confirmation to Customer (notification via email or the Marketplace is sufficient).  ZAGENO will use reasonable efforts to confirm Product Orders within 24 hours of a Product Order’s authorization or approval pursuant to this Contract.  Following correspondence with the relevant Supplier, ZAGENO may respond to a Product Order and offer, for each Product included in the Product Order, different pricing for Products, different Product volume or unit number availability, different Product shipping costs or timing, or other terms that differ from the initial Product Order (including any amounts due for: (i) Taxes; (ii) shipping and handling fees; (iii) special packaging materials; (iv) carrier surcharges (including, without limitation, fuel surcharges); (v) shipping palettes; (vi) environment-controlled shipping; and hazardous material fees imposed by government regulation); ZAGENO will provide notice of such different terms (such notice, the “Order Exception”) to Customer.  Customer may accept the Order Exception via the Marketplace (in which case, such new terms supersede the prior Product Order and such new terms are deemed the Product Order), or Customer may reject the Order Exception, in which case the applicable Product Order will be cancelled.

2.4  Suppliers. All Product Orders are subject to the terms and conditions of the applicable Supplier, found on the Marketplace for each supplier and the terms and details listed on the Marketplace page for such Product (collectively, the “Supplier Policies”). Supplier Policies include shipping and return policies of the applicable Supplier as well as the warranties for any Product. Customer must review the applicable Supplier Policies before placing any Product Orders since they will govern the purchase of Products and they are subject to change. As between ZAGENO and Customer, in the event of a conflict between the Supplier Policies and this Agreement, this Agreement will govern.

2.6  Product Pricing. Prices for Products are listed on the appropriate Marketplace page for such Product, are set by ZAGENO at ZAGENO’s sole discretion and are subject to change. Customer must remit the price listed on the Marketplace for each Product subject to additional discounts that ZAGENO may offer or as otherwise agreed in writing by Customer and ZAGENO, plus any shipping charges or Fees (defined below) and any Taxes or customs duties (collectively, the “Total Price”).

2.7  Support. Support for Products will be provided by the applicable Suppliers, and ZAGENO will provide reasonable assistance to Customer in coordinating such support.

3      DATA

3.1  Customer Data.

a          Customer owns the data collected from or provided to ZAGENO by Customer or its Authorized Users via the Marketplace or in the course of Customer’s receipt of the Services, excluding data and information related to the operation and performance of the Marketplace (“Customer Data”). Customer is responsible for the Customer Data’s accuracy, quality, integrity, legality, and the means by which such data was acquired.

b          Customer hereby grants to ZAGENO a non-exclusive, worldwide, royalty-free, fully paid up, sublicenseable, nontransferable (except as set forth in Section 10.3): (i) right and license, during the Term, to copy, distribute, display, modify, create derivative works of and otherwise use the Customer Data to (1) perform ZAGENO’s obligations under this Agreement and (2) provide individualized product suggestions and advertising to Customer via the Marketplace based on Customer’s activity on the Marketplace and Product Order history; and (ii) perpetual, irrevocable right and license during and after the Term to (1) collect, analyze and use the Customer Data to improve and enhance the Marketplace and for other development, diagnostic and corrective purposes in connection with the Marketplace and other ZAGENO offerings, (2) use the Customer Data for general market or industry benchmarking, analytics and reporting and to publish and display such results (except that such published or displayed results do not include information that identifies or would reasonably be expected to identify Customer or any individual Authorized User as the source of such data), solely to the extent that the data set into which the Customer Data is bundled does not consist of data solely attributable to Customer, and (3) create anonymized data from the Customer Data.  Such results and the anonymized data are not Customer Data and are “ZAGENO Data.”  ZAGENO Data also includes any feedback to ZAGENO with respect to the Marketplace or Documentation, which includes suggestions, comment for enhancements, functionality, or other comments.

c          Customer reserves all rights, title, and interest in and to the Customer Data other than the licenses expressly granted to ZAGENO under this Agreement or as authorized by Customer in connection with its use of the Marketplace.

3.2  Marketplace Ownership; Reservation Of Rights. As between the parties, ZAGENO retains all rights, title, and interest in and to the Marketplace and Documentation, all copies or parts thereof (by whomever produced), and all Intellectual Property Rights therein.  ZAGENO reserves all rights and grants no rights other than the limited licensed rights expressly granted to Customer under this Agreement with respect to the Marketplace and Documentation.

3.3  Feedback. Customer may occasionally provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to ZAGENO with respect to the Marketplace or Documentation. Customer hereby grants ZAGENO a royalty-free, fully paid-up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback in whole or in part; and (b) use the Feedback in whole or in part, including the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and lease products or services which practice or embody, or are configured for use in practicing, the Feedback in whole or in part.

3.4  Customer Responsibilities. Customer will prevent unauthorized access to or use of the Marketplace and Documentation and Services and notify ZAGENO promptly of any such unauthorized access or use. Customer will not use the Marketplace or purchase any Products on behalf of or for the sole benefit of any third party. All Products must be purchased in Customer’s name and on Customer’s behalf.

3.5  ZAGENO Responsibilities. ZAGENO will (a) comply with the Service Level Agreement in the attached Exhibit A, (b) implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Customer Data that this Agreement does not expressly authorize, and (c) from time-to-time in accordance with ZAGENO’s generally applicable procedures make available and implement upgrades and updates to the Marketplace that are made generally commercially available to its users at no additional charge.

4      FEES; PAYMENT TERMS

4.1  Fees. Customer will pay ZAGENO all Fees, as defined in the applicable Order Form. If payment of any Fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest rate permitted by law (“Law”) and Customer will pay all reasonable expenses of collection. In addition, if any payment has not been received by ZAGENO within 30 days from the time such payment is due, ZAGENO may suspend access to the Marketplace or Services until such payment is made. At its discretion, ZAGENO may increase the pricing for SaaS Fees or Service Fees stated on the applicable Order Form for any Renewal Term upon giving Customer at least 30 days’ notice (which may be sent by email) prior to the end of the then-current term.

4.2  Payment Terms. Unless otherwise set forth in an Order Form, Customer will pay ZAGENO all Fees via one of the payment methods permitted on Customer’s account on the Marketplace, which may include payment (a) by credit card, (b) through an online account through a third-party provider or payment processor, or (c) via direct billing/ACH. By providing any credit card, online account, or direct billing/ACH information, Customer authorizes ZAGENO to automatically charge or debit the selected payment method for the full amount due on a recurring basis (if applicable) until Customer notifies ZAGENO in writing. Collection of credit card information and the processing of payment of Fees by credit card will be performed by third party payment processers (the “Payment Processors”). Customer will be subject to the applicable Payment Processor’s terms and conditions for the processing of payments, as the same may be modified by such Payment Processor from time to time (collectively, the “Payment Processer Terms”). Information provided to any Payment Processor is governed by the applicable Payment Processor Terms. ZAGENO is not responsible for the performance of any Payment Processor. Customer will provide accurate information with respect to the applicable method of payment and agrees to promptly contact ZAGENO if any such information needs to be updated. Customer will ensure that it has sufficient funds or credit (as applicable) associated with the selected method of payment. Customer understands that the amounts charged or debited may vary and that this authorization will remain in effect during the Term. If an ACH payment is returned from the applicable bank account for insufficient or uncollected funds or for erroneous information, ZAGENO may reinitiate the returned ACH debit to the applicable bank account. Any amounts owed to ZAGENO that cannot be collected by ACH debit may be charged to any backup credit card on file for Customer. All Fees will be paid in the currency specified in the applicable invoice. Unless otherwise stated herein, all Fees are non-refundable.

4.3  Taxes. All amounts payable by Customer to ZAGENO hereunder are exclusive of any sales, use and other taxes or duties, however designated, including withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively “Taxes”). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of ZAGENO. Customer will not withhold any Taxes from any amounts due ZAGENO.

5      TERM, TERMINATION

5.1  Term. This Agreement will be effective from the Effective Date and continue for 12 months (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive 12-month terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party gives the other written notice of non-renewal at least 60 days before the end of the then-current term.

5.2  Termination. In addition to any other remedies it may have, either party may terminate this Agreement or any Order Form if the other party materially breaches any terms or conditions of this Agreement and fails to cure such breach within 30 days after receiving written notice of the breach.

5.3  Survival. Except as expressly stated herein, upon any expiration or termination of the Agreement, all rights granted and all obligations of ZAGENO to provide the Marketplace and Documentation under this Agreement will immediately terminate and Customer will (a) cease use of the Marketplace and Documentation; and (b) return or destroy all other copies or other embodiments of ZAGENO’s Confidential Information, except that any payment obligations that have accrued prior to such termination and Sections 3.1(b)(ii), 3.2, 3.3, 4, 5, 6, 7, 8, 9 and 10 will survive.

6      CONFIDENTIALITY

“Confidential Information” means, subject to the exceptions in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has marked as confidential or proprietary, or has identified in writing as confidential or proprietary within 30 days of disclosure to the other party (the “Receiving Party”); except that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified.  ZAGENO’s Confidential Information includes the Marketplace and Documentation, the identity of Suppliers with Products that are offered via the Marketplace, the pricing of any Product available on the Marketplace, and the terms of this Agreement.  Customer’s Confidential Information includes the Customer Data (subject to the rights granted to ZAGENO herein).  Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party;  (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently conceived, discovered, or developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.  Each party acknowledges that Confidential Information constitutes valuable trade secrets and proprietary information of a party, and each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted in this Section.  Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information and will exercise due care in protecting the Confidential Information from unauthorized use and disclosure.  In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.  Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.  Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and, if requested by the Receiving Party, to certify the return or destruction of all such Confidential Information.

7      REPRESENTATIONS, WARRANTIES, AND DISCLAIMER

7.1  Representations and Warranties.

1. Each party represents, warrants, and covenants to the other party that (i) such party has the required power and authority to enter into and to perform the obligations in this Agreement; (ii) the execution and performance of the obligations in this Agreement do not and will not violate any other agreement to which it is a party; (iii) this Agreement constitutes a legal, valid, and binding obligation when the associated Order Form is signed by both parties; (iv) it has duly authorized the representative whose signature appears on the applicable Order Form to execute the same; and (v) it will comply with all Applicable Laws in connection with its activities pursuant to this Agreement.
2. ZAGENO further represents, warrants and covenants that: (i) it will use industry standard measures to prevent the Marketplace from containing any “virus,” “trap door,” “Trojan Horse,” “worm,” “self-destruction,” “disabling,” “metering” device or any other malicious code, which could impair Customer’s use of or access to the same; (ii) the Marketplace and the Services will substantially conform with the applicable Documentation; and (iii) it will provide the Services in a professional and workmanlike manner.
3. Customer further represents, warrants and covenants that (i) the provision of Customer Data to ZAGENO under this Agreement does not and will not violate any rights of any third party, or any Applicable Law, (ii) Customer will comply with the ZAGENO Supplier Terms and the Supplier Terms and Conditions and has all permits, licenses, consents, and authorizations necessary or required to purchase and use all Products from each applicable Supplier, and (iii) Customer will only use the Products for research and development purposes and not for any clinical or other purposes, and (iv) Authorized Users have full authority to bind Customer to the ZAGENO Supplier Terms, the Supplier Terms and Conditions, and any additional terms presented and assented to by such Authorized User at the time of placing Product Orders.

7.2  Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM AND DOCUMENTATION AND SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND ZAGENO DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED AND DISCLAIMED TO THE EXTENT ALLOWED BY APPLICABLE LAW, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. EXCEPT AS EXPLICITLY PROVIDED IN THIS AGREEMENT, ZAGENO DOES NOT WARRANT THAT THE PLATFORM, DOCUMENTATION OR SERVICES ARE ERROR-FREE OR THAT OPERATION OR USE THEREOF WILL BE SECURE OR UNINTERRUPTED. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.

7.3  Disclaimer Regarding Third-Party Software. ZAGENO does not endorse and is not responsible for any Third-Party Software. ZAGENO will not be responsible, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Service.

7.4  Disclaimer Regarding Suppliers and Products. Customer acknowledges that ZAGENO only provides the Marketplace as a marketplace solution for Customer to purchase Products that are provided by Suppliers. ZAGENO does not fulfill Product Orders and only assists in the processing or placing thereof. ZAGENO does not ship or inspect any Products, and ZAGENO does not guarantee that a Supplier will fulfill a Product Order. Except as explicitly provided in this Agreement, (a) ZAGENO makes no representations or warranties about the suitability, reliability, timeliness, or accuracy of any information provided by Suppliers and does not independently verify this information and (b) ZAGENO makes no representations or warranties as to the quality, safety or legality of items advertised, or that a Product will meet the Customer’s requirements, needs or expectations. ZAGENO is not responsible to Customer, or any of Customer’s own customers, clients, buyers, or end users as relates to their or Customer’s use of the Products, or for any disputes with or liability that may arise with any Supplier.

8      LIMITATIONS OF LIABILITY

8.1  Disclaimer of Consequential Damages; Cap on Liability. NOTHING IN THIS AGREEMENT IS PURPORTED TO LIMIT OR EXCLUDE ZAGENO’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE, FRAUD, FRAUDULENT MISREPRESENTATION, OR ANY OTHER MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL FOR ZAGENO TO EXCLUDE OR RESTRICT LIABILITY. SUBJECT TO THIS, AND EXCEPT FOR LIABILITY ARISING FROM (A) A PARTY’S INDEMNIFICATION OBLIGATIONS OR (B) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY (I) SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF, OR (II) EXCLUDING PAYMENT OBLIGATIONS, AMOUNTS EXCEEDING THE AGGREGATE FEES PAID BY CUSTOMER TO ZAGENO UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY (AND THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT).

8.2  Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

9      INDEMNIFICATION

9.1  Indemnification by ZAGENO. ZAGENO shall defend, indemnify and hold the Customer, its Affiliates, its and their agents, employees and representatives (collectively the “the Customer Indemnitees'') harmless from and against any and all losses, liabilities, damages and expenses (including reasonable attorneys’ fees and costs) (“Losses”) incurred by the Customer Indemnitees as a result of any claims, demands, actions or other proceedings (“Claims”) by any third party to the extent arising out of: (a) the negligence or intentional misconduct of ZAGENO in the performance of its and their rights or obligations contemplated by the Agreement; or (b) that the Platform infringes a patent or copyright of any third party; except in each case to the extent such Losses arise out of (i) the negligence or intentional misconduct of the Customer or its representatives, (ii) any breach by the Customer of the terms and provisions of this Agreement, or (iii) the Products. Notwithstanding the foregoing, ZAGENO shall have no obligation or liability to the extent that the alleged Losses arise from (1) the combination, operation, or use of the ZAGENO Proprietary Items with platforms, services, deliverables, materials, technologies, business methods or processes not furnished by ZAGENO; (2) modifications which were not made by ZAGENO, or (3) unauthorized or improper use of the Platform or Documentation or use in violation of this Agreement ((1), (2) and (3), collectively, the “Indemnification Exclusions”). If such a claim is made or appears possible, the Customer agrees to permit ZAGENO, at ZAGENO’s sole discretion, to enable it to continue to use the Module or the Platform, as applicable, or to modify or replace any such infringing material to make it non-infringing. If ZAGENO determines that none of these alternatives is reasonably available, the Customer shall, upon written request from ZAGENO, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. If the use of the Marketplace or Documentation by Customer has become, or in ZAGENO’s opinion is likely to become, the subject of any claim of infringement, ZAGENO may at its option and expense (1) procure for Customer the right to continue using the Marketplace or Documentation as set forth hereunder; (2) replace or modify the Marketplace or Documentation to make it non-infringing so long as the Marketplace or Documentation has at least equivalent functionality; (3) substitute an equivalent for the Marketplace or (4) if options (1)-(3) are not reasonably practicable, terminate this Agreement and provide Customer a pro-rata refund of the Marketplace Access Fee. This Section 9.1 states ZAGENO’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

9.2  Indemnification by Customer. Customer will defend ZAGENO and the officers, directors, agents, and employees of ZAGENO (“ZAGENO Parties”) against (a) any Claims by a third party (i) arising from or related to any use or disclosure by Customer of any Marketplace or Documentation in violation of this Agreement, (ii) use of any Third-Party Software, or (iii) the Indemnification Exclusions, or (b) any dispute between Customer and a Supplier, including any breach or alleged breach by Customer of the Supplier Policies. Further, Customer will indemnify the ZAGENO Parties from Losses that are payable to any third party or incurred by the ZAGENO Parties arising from or in connection with the Claims.

9.3  Procedure. If a Customer Party or a ZAGENO Party becomes aware of any matter for which it believes it should be indemnified or defended under Section 9.1 or 9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the such Party by any third party (each an “Action”), such Customer Party or ZAGENO Party will give the other party prompt written notice of such Action. Customer Party or ZAGENO Party will cooperate, at the expense of the other Party, with the other Party and its counsel in the defense and Customer Party or ZAGENO Party, as applicable will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both parties, which will not be unreasonably withheld or delayed.

10    GENERAL

10.1          OFAC Control. Customer may not provide access to the Marketplace or Documentation or Services to any person or entity that is (a) identified on the Specially Designated Nationals List or Foreign Sanctions Evaders List of the Office of Foreign Assets Control, U.S. Department of the Treasury, as amended from time to time; (b) located in any country that is subject to U.S. economic sanctions prohibiting such access; or (c) otherwise unauthorized to have such access under any Applicable Law.

10.2       Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

10.3       Assignment. Neither party may assign this Agreement without the other party’s prior written consent; except that either party may assign this Agreement to an acquirer of or successor to all or substantially all its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.  Any assignment or attempted assignment by either party otherwise than in accordance with this Section 10.3 will be null and void.

10.4       Entire Understanding. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided in this Agreement.

10.5       Injunctive Relief. Any unauthorized use of the Marketplace or Documentation will cause irreparable harm and injury to ZAGENO for which no adequate remedy at law exists.  In addition to all other remedies available under this Agreement, at law or in equity, Customer further agrees that ZAGENO will be entitled to injunctive relief if Customer uses the Marketplace or Documentation in violation of the limited license granted in this Agreement or uses the Marketplace or Documentation in any way not expressly permitted by this Agreement.

10.6       Compliance with Laws by ZAGENO and its Suppliers. ZAGENO agrees that it will, and will procure that the Suppliers who make Products available on the Marketplace, comply fully at all times with all Applicable Laws and regulations, including but not limited to anti-corruption laws, and that it has not, and covenants that it will not, in connection with the performance of this Agreement and the ZAGENO Terms and Conditions of Sale, directly or indirectly, make, promise, authorize, ratify or offer to make, or take any act in furtherance of any payment or transfer of anything of value for the purpose of influencing, inducing or rewarding any act, omission or decision to secure an improper advantage; or improperly assisting it or Customer in obtaining or retaining business, or in any way with the purpose or effect of public or commercial bribery, and warrants that it has taken reasonable measures to prevent subcontractors, agents or any other third parties, subject to its control or determining influence, from doing so. For the avoidance of doubt this includes facilitating payments, which are unofficial, improper, small payments or gifts offered or made to Government Officials to secure or expedite a routine or necessary action to which we are legally entitled. For the purpose of this Agreement, “Government Official" (where ‘government’ means all levels and subdivisions of governments, i.e. local, regional, national, administrative, legislative, executive, or judicial, and royal or ruling families) means: (a) any officer or employee of a government or any department, agency or instrumentality of a government (which includes public enterprises, and entities owned or controlled by the state); (b) any officer or employee of a public international organization such as the World Bank or United Nations; (c) any officer or employee of a political party, or any candidate for public office; (d) any person defined as a government or public official under applicable local laws (including anti-bribery and corruption laws) and not already covered by any of the above; and/or; (e) any person acting in an official capacity for or on behalf of any of the above. “Government Official” shall include any person with close family members who are Government Officials (as defined above) with the capacity, actual or perceived, to influence or take official decisions affecting Customer business.

10.7       Notices. All notices under this Agreement will be in writing and sent to the recipient’s address indicated in the most recent ZAGENO Order Form (or other address requested in writing by a party) and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

10.8       Interpretation. The titles and headings in the Agreement are for ease of reference only and will not affect the meaning or construction of any of the terms of the Agreement.  Any phrase introduced by the terms “other,” “including,” “include,” “in particular,” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

10.9       Publicity. Notwithstanding anything herein to the contrary, ZAGENO may mention Customer and the relationship between ZAGENO and Customer (and use Customer’s logos in connection therewith) in ZAGENO’s marketing collateral, website, press releases, and other promotional and marketing materials.

10.10    Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof) (a “Force Majeure Event”).  Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event.  Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of 30 days or more, the party not affected by the force majeure event may terminate this Agreement by giving written notice thereof to the other party.  Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.

10.11    Arbitration. The Agreement and its performance will be governed, interpreted, construed, and regulated by the laws of the State of New York, United States, without reference to its choice of law rules.  All disputes arising out of the Agreement will be resolved by arbitration in accordance with the International Arbitration Rules of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by a commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who must be selected from the appropriate list of JAMS arbitrators in accordance with such Arbitration Rules and Procedures.  All such arbitration will be conducted in New York, New York, United States.  The arbitrator shall have the authority to grant specific performance as well as any other remedy authorized by Applicable Law and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine.  The parties shall keep the arbitration confidential and will cooperate to ensure the confidentiality of the arbitration when confirming any arbitrable award.  The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection with the arbitration.  Notwithstanding the foregoing, each party shall have the right to institute an action for preliminary injunctive relief without first seeking recourse to arbitration to avoid immediate and irreparable harm in the state or federal courts located in New York, New York, and each party hereby submits to the in personem jurisdiction and venue of those courts and agrees that any such dispute may be filed in those courts and no other.

Exhibit A

Service Level Agreement

1. Definitions:

“Downtime” means any amount of time during a calendar quarter period in which the Marketplace is not available on a ZAGENO server due to a network component under control of ZAGENO.

“Scheduled Downtime” means Downtime during a calendar quarter period that (a) occurs outside the hours of 9AM to 5PM Monday through the Customer local time, (b) does not exceed twelve hours in any 24-hour period, and (c) does not exceed 48 hours per calendar month.

“Availability” means the time in the calendar quarter period, less Downtime, plus Scheduled Downtime, with the result expressed as a percentage of the time in the period.

Time in Period - Downtime + Scheduled Downtime = Availability %
Time in Period

2. Exceptions.

ZAGENO will not be responsible for failures to meet service levels attributable to the following (collectively, “Exclusions”):

(a) Acts or omissions of the Customer, its agents, employees or contractors (including willful misconduct, negligence, breach of contract, or infringements of third-party proprietary rights);
(b) The Customer’s failure to follow the Documentation;
(c) Data latency or data unavailability as a result of an uncommunicated or uncoordinated change(s) in the Customer systems will not be factored into Downtime; and/or
(d) Downtime due to a force majeure event; operation under a disaster recovery plan; or provision of Services after the Term.

ZAGENO does not and cannot control the flow of data to or from the Marketplace and other portions of the Internet. At times, actions or inactions caused by these third parties can produce situations in which the Marketplace’s connection to the Internet (or portions thereof) may be impaired or disrupted. Although ZAGENO will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, ZAGENO cannot guarantee that they will not occur. Accordingly, ZAGENO disclaims any and all liability resulting from or related to such events.

3. Service Levels.

The Customer will use commercially reasonable efforts notify ZAGENO of expected or forecasted peak activity periods. Subject to the terms of this Exhibit A, ZAGENO guarantees a ninety-nine percent (99%) monthly average of Availability of the Marketplace. ZAGENO does not monitor availability of individual the Customer usage but only monitors the Marketplace availability as a whole.

4. Support Obligations.

Upon receipt of a problem or service report (a “Support Instance”), ZAGENO will promptly open a problem ticket with a unique identifier (a “Problem Ticket”) and classify the problem in accordance with the priority level classifications set forth in Section 5 of this Exhibit A.

5. Problem Escalation,

Response, and Resolution.
Upon receipt of Support Instances, the ZAGENO support team will make commercially reasonable efforts to respond to the Customer to confirm receipt, request additional information (if necessary), and provide status within the following Response Service Levels:

Resolution to an identified problem will be deemed complete when both the Customer and ZAGENO have reviewed the proposed solution, tested the results, and are satisfied that the Customer issue has been resolved. ZAGENO will make commercially reasonable efforts to deliver a resolution to the Support Instance within the following Resolution Service Levels.

6. Service Commitments.

ZAGENO will use commercially reasonable efforts to provide telephone support Monday through Friday, 9AM to 5:00 PM the Customer local time, excluding ZAGENO holidays. Support Instances submitted outside of the normal ZAGENO support hours will be responded to as soon as possible and no later than the start of the next business day.

7. Priority Classifications.

Priority 0. ZAGENO will classify the following Support Instances as Priority 0: The Marketplace is not available or non-operational and is preventing access to or use of the Marketplace, without a reasonable workaround.
Priority 1. ZAGENO will classify the following Support Instances as Priority 1:
The Marketplace is down or non-operational on an intermittent basis and is preventing access to or use of the Marketplace, without a reasonable workaround, for more than five minutes more than 3 times in an hour.
The Marketplace is operational but is not returning data within 5 times the average response time it had been operating in the last thirty (30) days, except for Exclusions.
Priority 2. ZAGENO will classify the following Support Instances as Priority 2:
The Marketplace is operational but is preventing the completion of non-critical processes, without a reasonable workaround, within 5 times the average response time it had been operating in the last thirty (30) days, except for Exclusions.

Exhibit B
AUTHORIZATION FORM

To Whom It May Concern:

This letter confirms that (“Buyer”) is a customer of ZAGENO, Inc. (“ZAGENO”) and has authorized ZAGENO to act on Buyer’s behalf and in accordance with Buyer’s instructions in relation to the purchase of certain products and materials from you, as a seller of such products and materials, including: (a) placing order(s) with you in Buyer’s name, (b) corresponding with you on Buyer’s behalf and inquiring with you about the status of Buyer’s order, and (c) paying for any order placed with you on Buyer’s behalf.

This authorization shall remain in effect until such time as the Buyer revokes the authorization and ZAGENO agrees to take no action on behalf of Buyer if such authorization is revoked.

Very truly yours,

____________________________________________
BUYER

By: _________________________________________

Print Name:___________________________________

Title: ________________________________________

Date: ________________________________________

Updated: October 12, 2023