MASTER SUBSCRIPTION AGREEMENT
MASTER SUBSCRIPTION AGREEMENT
This Agreement is between Zip Deal, LLC (“ZipDeal,” “We,” “Us,” or “Our”) and Customer.
If You were using Our Services under Our master software as a service agreement or a previous version of Our master subscription agreement, then this Agreement supersedes the previous agreement upon Your acceptance of this Agreement.
THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN ZIPDEAL AND CUSTOMER AND GOVERNS CUSTOMER’S ACQUISITION, USE OF AND ACCESS TO ZIPDEAL SERVICES AND CONTENT.
IF CUSTOMER REGISTERS FOR A FREE TRIAL OF ZIPDEAL SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO BE BOUND BY THIS AGREEMENT AS OF THE DATE OF YOUR FIRST ACCEPTANCE (THE “EFFECTIVE DATE”).
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY, SAID INDIVIDUAL REPRESENTS TO ZIPDEAL THAT SAID INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “CUSTOMER,” “YOU,” “YOUR” OR A RELATED CAPITALIZED TERM HEREIN REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SAID INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR AUTHORIZE ANY USE OF THE SERVICES.
Services are for use by members of the motor vehicle trade (including but not limited to the recreational vehicle, tractor, and powersport vehicle trade) and not for use by the general public. The Services may not be accessed or used by individuals for personal, family, or household purposes. The Services may not be accessed for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. Our direct competitors (including their employees and agents) are prohibited from accessing the Services.
General Terms and Conditions Table of Contents:
- Access to the Services
- Use of the Services
- Term and Termination
- Fees and Payment
- Confidential Information
- Ownership and Protection of Customer Data
- Privacy Practices
- Non-ZipDeal Products
- Beta Services
- Free Trials
- Free Services
- Property Rights and Licenses
- Representations, Warranties, and Disclaimers
- Limitation of Liability; Exclusion of Damages
- Responsibility for Affiliates
- Assignment; Sale of Business
- Acknowledgement of Responsibilities; Compliance
- Export Compliance and Use Restrictions
- Relationship of the Parties
- Governing Law; Dispute Resolution
- Entire Agreement and Order of Precedence
General Terms and Conditions (“General Terms”)
SECTION 1. ACCESS TO THE SERVICES
1.1 Services. We will make the Services and Your Customer Data available to You pursuant to the terms and conditions of these General Terms and the applicable Order Form(s), applicable Supplemental Terms, and Documentation. We will use commercially reasonable efforts to: (a) make the Services available for use by authorized Users, 24 hours a day, 7 days a week, except (i) during Planned Downtime (of which We will give advance electronic notice) or (ii) Force Majeure Events; and (b) provide the Services in accordance with laws and government regulations applicable to Our provision of Our Services to Our customers generally (i.e. without regard for Your particular use of the Services), and subject to Your use of the Services in accordance with these General Terms, the Documentation, the applicable Supplemental Terms, the applicable Data Transfer Authorization Form(s), and the applicable Order Form(s).
1.2 Standard Support. We will, at no additional charge, provide applicable standard customer support for the Purchased Services to You, subject to Section 4.10 (Suspension of Service and Acceleration) and to Our then-current policies and procedures, as detailed in the Documentation.
1.3 Modifications. You acknowledge that the Services were not designed or produced to Your individual requirements and You are solely responsible for confirming that the Services meet such requirements. You further acknowledge that the Services are based on a standardized service platform made available by Us to a variety of customers. We will make available to You as part of the Services, the error corrections and improvements that We make available to Our customers generally as part of their subscription to the same services offering, but specifically excluding any new products, offerings, features or add-ons for which We charge an additional fee, unless You purchase a subscription thereto. You acknowledge that We may modify the features and functionality of any Service during the subscription term. We shall provide You with commercially reasonable advance notice of any deprecation of any material feature or functionality of a Purchased Service. You agree that no Service subscription is contingent on the delivery of any future functionality or features, or dependent on any statements made by Us regarding possible future functionality or features.
1.4 Supplemental Terms. We will notify You of applicable Supplemental Terms prior to Your activation of any Service. The activation of any Service by You will be considered acceptance of the applicable Supplemental Terms.
1.5 Use by Your Contractors. Subject to Section 2 (Use of the Services) and Section 5 (Confidential Information), You may permit Your contractors, accountants, attorneys, or professional service providers acting on Your behalf, who have a need to access the Services on Your behalf, who are informed of the usage restrictions, and who are subject to an agreement or other binding professional obligation to treat Confidential Information in a manner consistent with the terms of this Agreement (“Contractors”), to access the Services only in connection with Your use of the Services, for Your benefit, and as permitted under this Agreement. You agree to (i) ensure that Your Contractors abide by the terms and conditions of this Agreement, (ii) be liable for breaches of this Agreement by Your Contractors. “Contractors” do not include Our competitors. Notwithstanding anything to the contrary, You shall not (i) permit any of Our competitors to access the Services or (ii) disclose the Services (or any features, functions or graphics thereof) to any of Our competitors.
1.6 Setup. Setup is not included in Service subscriptions. We will provide, subject to the Supplemental Terms for Setup, any Setup purchased by You as detailed in the applicable Order Form. If You have purchased Setup in connection with a Service subscription, You acknowledge and agree that: (a) You may not be able to use the Service until the completion of the Setup; (b) and the Go Live Date for the Service may be different from the start date of Your Service subscription.
1.7 Data-Export Integrations. We will use commercially reasonable efforts to provide, subject to the applicable Supplemental Terms, the Data-Export Integrations authorized by You in the applicable Data Transfer Authorization Form(s).
1.8 Data-Import Integrations. We will use commercially reasonable efforts to provide, subject to the applicable Supplemental Terms, the Data-Import Integrations requested by You in the appliable Order Form(s).
1.9 DMS Integrations. You acknowledge that Your DMS Provider may condition Integrations with Your DMS on Your acceptance of separate terms and conditions set by Your DMS Provider (“DMS Integration Terms”). You acknowledge that a DMS Provider may decline to effectuate an Integration, unless and until you accept the DMS Provider’s DMS Integration Terms (if any). You understand and agree that We do not control the terms of any DMS Integration Terms. As between the parties, You are solely responsible for complying with all applicable DMS Integration Terms (if any). You acknowledge that We have no obligation to monitor Your compliance or with any DMS Integration Terms. We shall have no liability for any breach of any DMS Integration Terms by You or by a DMS Provider, even if We have knowledge of such breach. If You fail to accept or respect the DMS Integration Terms of Your DMS Provider, an Integration between the Services and Your DMS may not be possible. In the absence of an Integration with your DMS, You may not have access to all the features and functionalities of the Services.
SECTION 2. USE OF THE SERVICES
2.1 Login Management. Access to and use of a Service is subject to the restrictions (if any) specified in the applicable Order Form, Supplemental Terms, or Documentation regarding the number of individual Users permitted under Your subscription to the applicable Service. You agree and acknowledge that a User Login cannot be shared or used by more than one (1) individual per Account. However, User Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services (such as an individual whose employment terminates), but two or more individuals may not share a single User Login. You and Your Users are responsible for maintaining the security, confidentiality, proper creation, use and termination of all User Login information for Your Account. You shall immediately inform Us if there is any reason to believe that a User Login, password, or any other security device has or is likely to become known to any person not authorized to use it, or is being or is likely to be used in an unauthorized way. We will not be liable for any loss or damage arising from unauthorized use of Your Account. We reserve the right, in Our sole discretion, to require You to change any or all of the User Logins, passwords or other security controls used by You in connection with the Services and You shall promptly comply with any such requirement. You shall not use a Service to circumvent the requirement for an individual User Login for each individual who (a) uses the Service to interact with End-Users; (b) processes data related to interactions with End-Users; or (c) processes data related to interactions originating from a Non-ZipDeal Service that provides functionality similar to functionality provided by the Service and which would, pursuant to this Agreement, require an individual User Login if utilizing the Service for such interaction. Further, You shall not use any Service in such a way to circumvent applicable subscription restrictions or User restrictions in the Service user interface.
2.2 Subscriptions. Unless otherwise provided in the applicable Order Form, Supplemental Terms, or Documentation, (a) Purchased Services are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions commence on the start date specified in the applicable Order Form(s), (c) subscriptions for Purchased Services may be added during Your current subscription term, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (d) any added subscriptions will renew on the same date as Your current subscriptions. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
2.3 Usage Limits. Services and Content may be subject to the usage limits (if any) specified in Order Forms, Supplemental Terms, and/or Documentation. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, We may invoice You, and You shall pay Us for the excess usage in accordance with Section 4.4 (Invoicing and Payment).
2.4 Customer Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which You acquired Customer Data, Your use of Customer Data with the Services, and the interoperation of any Non-ZipDeal Services with which You use Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement and applicable laws and government regulations, and (e) comply with terms of service of any Non-ZipDeal Services with which You use Services or Content. Any use of the Services in breach of the foregoing by You or Your Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to any such suspension.
2.5 Usage Restrictions. You will not: (a) make any Service or Content available to anyone other than You, Your Users, or Your End-Users, or use any Service or Content for the benefit of anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation; (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering; (c) use a Service or Non-ZipDeal Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use a Service or Non-ZipDeal Service to store or transmit Malicious Software; (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein; (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks; (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit; (h) use any Services to access or use any of Our intellectual property except as permitted under this Agreement; (i) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof; (j) copy Content except as permitted herein or in an Order Form, Supplemental Terms, or the Documentation; (k) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation; (l) demonstrate the Services (or any feature, function, or graphics thereof) to any of Our competitors (including any employee or agent thereof); (m) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (i) build a competitive product or service, (ii) build a product or service using similar ideas, features, functions or graphics of the Service, (iii) copy any ideas, features, functions or graphics of the Service, or (iv) determine whether a Service is within the scope of any patent.
2.6 Use With Your Mobile Device. Mobile access to the Services requires an active subscription, internet access, and may not be available for all mobile devices or telecommunication providers. You will ensure Your mobile device and telecommunications provider is compatible with the Services. We are not obligated to provide a compatible version of the Services for all mobile devices or telecommunication providers. The mobile devices and telecommunication providers that are compatible with the Services are subject to change by Us at any time with reasonable notice to You. You agree that You are solely responsible for all mobile device and telecommunication provider requirements, including any applicable changes, updates, and fees as well as the terms of Your agreement with Your mobile device and telecommunications provider.
2.7 ZIPDEAL MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO:
(A) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION;
(B) ANY LOSS, DAMAGE, OR SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; OR
(C) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS, OR SETTINGS CONNECTED WITH THE SERVICES.
2.8 Removal of Content and Non-ZipDeal Services. If You receive notice that Content or a Non-ZipDeal Service must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or this Agreement, You will promptly do so. If You do not take required action in accordance with the above, or if in Our judgment continued violation is likely to reoccur, We may disable the applicable Content, Service, and/or Non-ZipDeal Service. If requested by Us, You shall confirm such deletion and discontinuance of use in writing, and We shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if We are required by any third party rights holder to remove Content or receive information that Content provided to You may violate applicable law or third-party rights, We may discontinue Your access to Content through the Services and/or Integrations.
SECTION 3. TERM AND TERMINATION
3.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
3.2 Term of Purchased Subscriptions; Automatic Renewal. The term of each subscription is as specified in the applicable Order Form. Subscriptions commence on the start date specified in the applicable Order Form. If no start date is specified in the applicable Order Form, then the subscription will start on the Go Live Date notified to You by Us in writing. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods of one month, unless either party gives the other written notice at least thirty (30) days before the end of the relevant subscription term. You may give notice of non-renewal by email addressed to: email@example.com. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing. Except as expressly provided in the applicable Order Form, the applicable Supplemental Terms, or Section 3.3 (Termination), subscriptions are (i) non-cancelable and (ii) are not terminable by You before the end of their stated term.
3.3 Termination. A party may terminate this Agreement for cause (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Except as expressly provided in the applicable Order Form or the applicable Supplemental Terms, this Section 3.3 is a complete and exhaustive list of Your termination rights.
3.4 Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 3.3 above, We will refund You any unearned prepaid subscription fees covering the remainder of the term of all subscriptions after the effective date of termination. For the sake of clarity, Setup fees are not subscription fees for purposes of this Section 3.4 and are non-refundable. If this Agreement is terminated by Us in accordance with Section 3.3 above, You will pay any unpaid fees covering the remainder of the term of all subscriptions to the extent permitted by applicable law. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
3.5 Surviving Provisions. Sections 3.4, 3.5, 4, 5,10.2, 10.3, 10.4, 11.2, 12.1, 12.5, 13.3, 14, 15, 16, 17.2, 18, and 22 will survive any termination or expiration of this Agreement, and Section 6 (Ownership and Protection of Customer Data) will survive any termination or expiration of this Agreement for so long as We retain possession of Customer Data.
3.6 Export of Customer Data. For thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Customer Data available to You, upon Your request, for export or download as provided in the Documentation. Thereafter, We will have no obligation to maintain or provide any Customer Data, and, as provided in the Documentation, We will, unless prohibited by law or legal order, delete Your Customer Data in Our Services in accordance with Our Data Deletion Policy (available at www.zipdeal.com/data-deletion-policy-1) as this policy may be updated or modified from time to time by Us with prior written notice to You.
SECTION 4. FEES AND PAYMENT
4.1 Subscription Fees. You will pay all subscription fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (a) subscription fees are based on Services subscriptions purchased and not actual usage, (b) subscription payment obligations are non-cancelable and subscription fees paid are non-refundable, and (c) subscription quantities purchased cannot be decreased during the relevant subscription term.
4.2 Usage Charges. You will pay all Usage Charges (if any) incurred by You at the rates specified in the applicable Order Form(s).
4.3 Fees for New Features. We reserve the right to charge additional fees to You for the use of any additional services or features that We may introduce, and which You elect to use. We shall provide You with advance notice of the fees applicable to any new features.
4.4 Invoicing and Payment. Unless otherwise specified in the applicable Order Form or invoice, You shall make payments by credit card, direct debit through the Automated Clearing House (ACH), or wire transfer to the account indicated on the invoice without any cash discount or setoff, and We shall not be required to incur any expense to receive timely payment in full as required by this Agreement. You will provide Us with valid and updated credit card and/or direct debit information, unless otherwise agreed in writing with Us. If You provide credit card or direct debit information to Us, You authorize Us to charge such credit card or bank account for all subscriptions listed in the applicable Order Form(s) for the initial subscription term and any renewal subscription term(s) as set forth in the Section 3.2 (Term of Purchased Subscriptions; Automatic Renewal). Subscription fees are invoiced in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. Usage Charges (if any) are invoiced either monthly in arrears or in accordance with any different billing frequency stated in the applicable Order Form. Support Services are invoiced in accordance with the applicable Order Form. Multiple invoices in a given billing period may be consolidated, at Our discretion, into a single invoice. If the applicable Order Form specifies that payment will be by a method other than a credit card or direct debit, We will invoice You in advance and otherwise in accordance with the applicable Order Form. Unless otherwise stated in the applicable Order Form, invoiced fees are due net 15 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. You may give notice of an updated billing address by email addressed to: firstname.lastname@example.org. If You do not notify Us of updates to Your payment method (e.g., credit card expiration date), to avoid interruption of the Services, We may participate in programs supported by Your card provider (e.g., updater services, recurring billing programs, etc.) to try to update Your payment information, and You authorize Us to continue billing Your account with the updated information that We obtain. All payments shall be made to Us without setoff or counter-claim and without any deduction or withholding. Card payments are processed through third-party payment channels and the type of credit cards accepted by these payment channels may vary depending on the jurisdiction You are in. We reserve the right to only accept certain credit card providers and may modify the list of such providers, including no longer accepting any credit card payments of any kind from any card providers, at any time without prior notice to You.
4.5 Promotional Offers. From time to time, We may offer Services for a trial period during which We will charge You a promotional discounted rate for the Services (a “Promotional Offer”). Supplemental Terms applicable to the Promotional Offer may appear on the trial registration web page or Order Form. If You are taking part in a Promotional Offer, You may be required to terminate the trial Service(s) within the timeframe communicated to You when You accepted the offer in order to avoid being charged at standard undiscounted rates to continue the Service(s) at the end of the trial period. We reserve the right to charge You for such Services (at the standard undiscounted rate) if We determine (in Our reasonable discretion) that You are breaching the terms and conditions of the offer.
4.6 Communication Surcharges. All subscription fees are exclusive of any applicable communications service or telecommunication provider (e.g., carrier) fees or surcharges (collectively, “Communications Surcharges”). You will pay all Communications Surcharges associated with Your use of the Services. Additionally, We will charge You, and You will pay, any and all additional costs, fines, or penalties We incur from a governmental or regulatory body or telecommunications provider as a result of Your use of the Communication Services.
4.7 Price Changes. We may change the price of the Services at any time and if You have a recurring purchase, We will notify You by email, or other reasonable manner, at least 15 days before the price change. After the first twelve (12) months of any subscription term, We may increase any subscription fees no more than once annually and provided that (i) during the initially contracted subscription term, no such annual increase shall exceed ten percent (10%) except for Content Price Increases and (ii) with respect to any subscription term renewals, no such increase shall take effect until the start of the next renewal subscription term following Our notice to You of such fee increase, sent no later than sixty (60) days prior to the start of such subscription period. For the sake of clarity, the foregoing is not applicable to any new products, offerings, features, upgrades, or add-ons for which We charge an additional fee.
4.8 Integrations. You are responsible for paying all Integration Fees (if any) associated with: (i) Integrations that You purchase, authorize, or order: or (ii) any Non-ZipDeal Products that You elect to integrate with Services. We reserve the right to implement Integration Fees in connection with Your use of any third-party technology, software, or service that You elect to integrate with a Service, including any Non-ZipDeal Services. If We expect to implement an Integration Fee, We will endeavor to provide You with email notice reasonably in advance. Further, and without limiting Our rights and remedies, if You fail to pay timely either (i) the subscription fees for a Service to which an Integration is connected or (ii) the Integration Fee for an Integration, We may suspend the Integration and charge You an additional one-time fee (at Our then standard rate) in order to reactivate the Integration. You acknowledge that when You elect to integrate a Non-ZipDeal Service with the Services, the provider of the Non-ZipDeal Services may charge You fees in connection with the Integration. You are responsible for all third-party fees incurred by You in connection with an Integration, and that Your failure to pay third-party fees may result in the Non-ZipDeal Service provider discontinuing the Integration. You further acknowledge that We may employ a third-party vendor to implement or facilitate Integrations and that said vendor may charge fees in connection with the Integration to the provider of the Non-ZipDeal Service that You elect to integrate through a Integration.
4.9 Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.4 (Invoicing and Payment) above.
4.10 Suspension of Service and Acceleration. If any charge owing by You under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card or by direct debit), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this Agreement or other such agreements so that all such obligations become immediately due and payable, and suspend Services and/or standard customer support until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 21 (Notice), before suspending Services.
4.11 Setup Fees. If You fail to observe the payment terms specified in the applicable Order Form for any Setup Fees connected with a Service, then We may, without limiting Our other rights and remedies hereunder, suspend the Service until Your account is current.
4.12 Payment Disputes. We will not exercise Our rights under Section 4.9 (Overdue Charges) or Section 4.10 (Suspension of Service and Acceleration) section above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.13 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property, and employees.
SECTION 5. CONFIDENTIAL INFORMATION
5.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Customer Data and Your Confidential Business Information; Our Confidential Information includes the Services, and the terms and conditions of this Agreement (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was or is obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the parties; or (d) was or is independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information. For the avoidance of doubt, the non-disclosure obligations set forth in this Section 5 apply to Confidential Information exchanged between the parties in connection with the evaluation of additional ZipDeal services.
5.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel, or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this Section 5. Notwithstanding the foregoing, We may disclose the terms of this Agreement to a subcontractor or Non-ZipDeal Service provider to the extent necessary to perform Our obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein. Notwithstanding anything to the contrary, You shall not disclose Services, Documentation, or any of Our Confidential Information to any of Our competitors (including any employee or agent thereof). You acknowledge and agree that: (i) We may store Your Confidential Business Information in Our systems separate from Customer Data and/or outside the Service; and (ii) Our security policies and procedures for Confidential Business Information may differ from Our security policies and procedures for Customer Data.
5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
5.4 Notwithstanding Section 5.2, We may transfer Customer Data to the third parties designated by You in Your Data Transfer Authorization Forms (if any) in accordance with said Data Transfer Authorization Forms.
SECTION 6. OWNERSHIP AND PROTECTION OF CUSTOMER DATA
6.1 Ownership of Customer Data. You shall retain ownership rights to all Customer Data processed under the terms of this Agreement.
6.2 Protection of Customer Data in the Services. We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, as may be further described in the Documentation and/or Supplemental Terms, as applicable. Those safeguards will include measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by You or Your Users).
6.3 Protection of Data on Your Devices. You acknowledge that We have no control over any of Your Customer Devices on which Your data may be stored. As between the parties, You are solely responsible for maintaining appropriate administrative, physical, and technical safeguards for the protection, security, confidentiality and integrity of Customer Device Data. Notwithstanding anything to the contrary, We have no responsibility for securing or safeguarding Customer Devices or any Customer Device Data.
6.4 Protection of Data Transferred to an ISP. You acknowledge that We have no control over any ISP to which Your Customer Data may be transferred pursuant to an Integration. As between the parties, You are solely responsible for ensuring that each of Your ISPs (if any) maintains appropriate administrative, physical, and technical safeguards for the protection, security, confidentiality and integrity of Your data.
SECTION 7. PRIVACY PRACTICES
7.1 Customer as Data Controller. To the extent Customer Data constitutes Personal Data, the parties agree that You shall be deemed to be the Data Controller, and We shall be deemed to be the Data Processor.
7.2 Hosting and Processing. Customer Data may be hosted by Us or Our authorized third-party service providers in the United States.
7.3. California Consumer Privacy Act (CCPA) Addendum. If You are a “business” under CCPA section 1798.140(c), then Our CCPA Addendum will be applicable if accepted by You. Upon acceptance by You, the CCPA Addendum becomes part of this Agreement. You acknowledge that, unless otherwise specified in applicable law: (i) We have no obligation to act upon a request to know or a request to delete from any of Your End-Users; and (ii) if We receive a request to know or a request to delete from an End-User of Yours, We may inform the End-User that the request cannot be acted upon because the request has been sent to a service provider. If You request Our assistance in responding to a request to know or a request to delete from a consumer and We perform services for You in response to Your request, then We may charge You, and You agree to pay, additional fees for said services calculated on a time-and-materials basis at Our applicable service rates in effect at the time such services are performed.
7.6 In-Product Cookies. Whenever You, Your Users or End-Users interact with Our Services, We automatically receive and record information on Our server logs from the browser or device, which may include IP address, “cookie” information, and the type of browser and/or device being used to access the Services. When We collect this information, We only use this data (i) to provide the Services, or (ii) in aggregate form, in a manner that would not identify Your Users or End-Users personally.
7.7 Analytics Data. You acknowledge and agree that, as between the parties, We own and have the right to freely use and disclose Analytics Data for Our business purposes, provided that Analytics Data may not be disclosed in a manner that identifies, or could be used to identify, You, Your Users, or End-Users, or otherwise associates them with such data.
SECTION 8. NON-ZIPDEAL PRODUCTS
8.1 Non-ZipDeal Products. We or third parties may make available third-party products, software, or services, including, for example, Non-ZipDeal Services or Non-ZipDeal Software. Any acquisition by You of such products, software, or services, and any exchange of data between You and any Non-ZipDeal Product provider or Non-ZipDeal Products is solely between You and the applicable Non-ZipDeal Product provider. We do not warrant or support Non-ZipDeal Products or other third-party products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in an Order Form. We are not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by any Non-ZipDeal Product or its provider.
8.2 Integration with Non-ZipDeal Products. Services may contain features designed to interoperate with Non-ZipDeal Services or Non-ZipDeal Software. ZipDeal cannot guarantee and does not warrant the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-ZipDeal Service or Non-ZipDeal Software ceases to make the Non-ZipDeal Service or Non-ZipDeal Software available for interoperation with the corresponding Service features in a manner acceptable to Us. The failure of any Non-ZipDeal Product provider to make a Non-ZipDeal Product available for interoperation with Services in a manner acceptable to ZipDeal does not entitle You to terminate any subscription to Services.
8.3 Non-ZipDeal Product Terms. You acknowledge that Your use of Non-ZipDeal Services or Non-ZipDeal Software may be subject to terms and conditions set by the third-party provider of the Non-ZipDeal Services or Non-ZipDeal Software (“Non-ZipDeal Product Terms”). You understand and agree that We do not control the terms of any Non-ZipDeal Product Terms. As between the parties, You are solely responsible for complying with the applicable Non-ZipDeal Product Terms (if any). You acknowledge that We have no obligation to monitor Your compliance or with Non-ZipDeal Product Terms. We shall have no liability for any breach of Non-ZipDeal Product Terms by You or by a Non-ZipDeal Product provider, even if We have knowledge of such breach.
8.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY, ZIPDEAL SHALL HAVE NO OBLIGATIONS AND NO LIABILITY OF ANY TYPE WITH RESPECT TO NON-ZIPDEAL PRODUCTS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ZIPDEAL’S AGGREGATE LIABILITY WITH RESPECT NON-ZIPDEAL PRODUCTS SHALL NOT EXCEED $100, REGARDLESS OF THE NUMBER OF OCCURENCES, CLAIMS, OR CLAIMANTS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ZIPDEAL AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF NON-ZIPDEAL PRODUCTS.
SECTION 9. BETA SERVICESFrom time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to Supplemental Terms that will be presented to You. Unless otherwise stated or communicated to You by Us, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
SECTION 10. FREE TRIALS
10.1 If You register for or accept a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of: (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in Our sole discretion. Supplemental Terms applicable to the free trial may appear on the trial registration web page or Order Form. If You are taking part in a free trial, You may be required to terminate the trial Service(s) within the timeframe communicated to You when You accepted the offer in order to avoid being charged to continue the Service(s) at the end of the trial period.
10.2 ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST.
10.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND ZIPDEAL SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ZIPDEAL’S AGGREGATE LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $100, REGARDLESS OF THE NUMBER OF OCCURENCES, CLAIMS, OR CLAIMANTS. WITHOUT LIMITING THE FOREGOING, ZIPDEAL DOES NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS; (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; OR (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ZIPDEAL AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT DURING THE FREE TRIAL PERIOD, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER DURING THE FREE TRIAL PERIOD.
10.4 CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.
SECTION 11. FREE SERVICES
11.1 Free Services. We may make Free Services available to You. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 11 and any other portion of this Agreement, this Section 11 shall control. Free Services are provided to You without charge up to certain limits as described in the Documentation, Supplemental Terms, and/or Order Form. Usage over these limits requires Your purchase of additional resources or services. You agree that We, in Our sole discretion and for any or no reason, may terminate Your access to the Free Services or any part thereof. You agree that any termination of Your access to the Free Services may be without prior notice, and You agree that We will not be liable to You or any third party for such termination. You are solely responsible for exporting Customer Data from the Free Services prior to termination of Your access to the Free Services for any reason, provided that if We terminate Your account, except as required by law, We will provide You a reasonable opportunity to retrieve Your Customer Data.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY, FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND ZIPDEAL SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE ZIPDEAL’S AGGREGATE LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $100, REGARDLESS OF THE NUMBER OF OCCURENCES, CLAIMS, OR CLAIMANTS. WITHOUT LIMITING THE FOREGOING, ZIPDEAL AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; OR (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ZIPDEAL FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT IN CONNECTION WITH CUSTOMER’S USE OF THE FREE SERVICES, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER IN CONNECTION WITH CUSTOMER’S USE OF THE FREE SERVICES.
SECTION 12. PROPERTY RIGHTS AND LICENSES
12.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We, Our Affiliates, Our licensors and Content providers reserve all of their right, title and interest in and to the Beta Services, Content, Services including all of their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
12.2 Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms, Supplemental Terms, and Documentation.
12.3 License by Customer to ZipDeal. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-ZipDeal Services and program code created by or for You using a Service or for use by You with the Services, and Customer Data, each as appropriate for Us to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If You choose to use a Non-ZipDeal Service with a Service, You grant Us permission to allow the Non-ZipDeal Service and its provider to access Customer Data and information about Your usage of the Non-ZipDeal Service as appropriate for the interoperation of that Non-ZipDeal Service with the Service. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any Customer Data or Non-ZipDeal Service.
12.4 License by Customer to Use Feedback. You grant to Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Your Users relating to Our Services.
12.5 Testimonials. If You submit a testimonial to Us, then You agree that We may publish Your testimonial, together with Your name and any logo that You submit with Your testimonial, on Our Site, on such page and in such position as We may determine in Our sole discretion. You further agree that We may edit the testimonial and publish edited or partial versions of the testimonial. However, We will never edit a testimonial in such a way as to create a misleading impression of Your views. You may terminate this testimonial license by giving to Us thirty (30) days’ written notice of termination.
SECTION 13. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
13.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
13.2 ZipDeal Warranties. We warrant that during an applicable subscription term (a) the descriptions herein of the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data are materially accurate, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to Section 8.2 (Integration with Non-ZipDeal Products), We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in Section 3.3 (Termination) and Section 3.4 (Refund or Payment upon Termination).
13.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY, BETA SERVICES, COMMUNICATION SERVICES, CONTENT, FREE SERVICES, FREE TRIALS, AND SUPPORT SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. WE ADDITIONALLY DISCLAIM ALL WARRANTIES RELATED TO NON-ZIPDEAL PRODUCTS AND THIRD PARTY TELECOMMUNICATIONS PROVIDERS.
SECTION 14. INDEMNIFICATION
14.1 Indemnification by ZipDeal. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under Section 13.2 (ZipDeal Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon thirty (30) days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if: (1) the allegation does not state with specificity that the Purchased Services are the basis of the Claim Against You; (2) a Claim Against You arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Us, if the Services or use thereof would not infringe without such combination; (3) a Claim Against You arises from Free Services, from Services under a free trial, or from Services under an Order Form for which there is no charge; or (4) a Claim against You arises from (i) Beta Services, (ii) Communication Services, (iii) Content, (iv) a Non-ZipDeal Product, (v) Support Services, or (vi) Your breach of this Agreement.
14.2 Indemnification by Customer. You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party alleging (a) that any Customer Data or Your use of Customer Data with the Services, (b) a Non-ZipDeal Product used by You, or (c) the combination of a Non-ZipDeal Product used by You and the Services, infringes or misappropriates such third party’s intellectual property rights or any third party’s privacy rights, or arising from Your use of the Services or Content in an unlawful manner or in violation of the Agreement (each a “Claim Against ZipDeal”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against ZipDeal, provided We (a) promptly give You written notice of the Claim Against ZipDeal, (b) give You sole control of the defense and settlement of the Claim Against ZipDeal (except that You may not settle any Claim Against ZipDeal unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense. The above defense and indemnification obligations do not apply if a Claim Against ZipDeal arises from Our breach of this Agreement.
14.3 Exclusive Remedy. This Section 14 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
SECTION 15. LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES
15.1 Limitation of Liability. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY FEES OR TO MAKE PAYMENT FOR PURCHASES.
15.2 Exclusion of Consequential and Related Damages. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
15.3 THE LIMITATIONS AND EXCLUSIONS OF LIABILITY HEREIN SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
15.4 THE PROVISIONS OF THIS SECTION 15 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION 15 IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
15.5 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, ZIPDEAL’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
SECTION 16. RESPONSIBILITY FOR AFFILIATES.
EACH OF YOUR AFFILIATES AGREES THAT IT IS JOINTLY AND SEVERALLY LIABLE FOR THE PERFORMANCE OF ALL OF YOUR OBLIGATIONS AND FOR ALL YOUR LIABILITIES UNDER THIS AGREEMENT. THE LEGAL ENTITY ACCEPTING THIS AGREEMENT ON BEHALF OF YOU (“CUSTOMER REPRESENTATIVE”) REPRESENTS AND WARRANTS THAT EACH OF ITS AFFILIATES IS LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME EXTENT AS THE CUSTOMER REPRESENTATIVE. CUSTOMER REPRESENTATIVE SHALL ENSURE THAT EACH OF ITS AFFILIATES ABIDES BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND CUSTOMER REPRESENTATIVE UNCONDITIONALLY AND IRREVOCABLY GUARANTEES THE PERFORMANCE OF ALL OBLIGATIONS UNDER THIS AGREEMENT BY ALL OF ITS AFFILIATES. CESSATION OF CONTROL SHALL NOT: (I) RELEASE AN AFFILIATE OF ITS OBLIGATIONS HEREUNDER; OR (II) RELEASE CUSTOMER REPRESENTATIVE OF ANY OF ITS OBLIGATIONS HEREUNDER WITH RESPECT TO ANY OF ITS AFFILIATES FOR WHICH CONTROL HAS CEASED. THE PROVISIONS OF THIS SECTION 16 SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT.
SECTION 17. ASSIGNMENT; SALE OF BUSINESS
17.1 Assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement, or delegate performance of Your duties under this Agreement, without Our prior written consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement in connection with any merger or change of control of ZipDeal or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill Our obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Notwithstanding anything to the contrary, We are permitted to transfer, sell, pledge, or grant a security interest in any receivables arising under this Agreement.
17.2 Sale of Your Business. You will provide Us with sixty (60) days advance written notice of any sale of all or substantially all of (i) Your assets or (ii) any Affiliate’s assets (each a “Sale of Your Business”). You acknowledge that a Sale of Your Business does not (i) entitle You to terminate any subscription or this Agreement or (ii) excuse Your performance of any of Your obligations under this Agreement. Upon the earlier of (i) Your execution of an agreement for the Sale of Your Business or (ii) the Sale of Your Business, all Your unpaid fee obligations hereunder will automatically accelerate so that all such obligations become immediately due and payable. If You fail to timely provide Us with the written notice required in this Section, You will pay, in addition to all fees due hereunder, all costs of collecting sums due from You, including reasonable attorneys’ fees and legal expenses incurred by Us. Section 4.12 (Payment Disputes) will not be applicable in the case of a Sale of Your Business.
SECTION 18. ACKNOWLEDGEMENT OF RESPONSIBILITIES; COMPLIANCE
18.1 Acknowledgement of Responsibilities. You acknowledge and agree that all accounting, inventory management, marketing, sales, and service decisions are Your responsibility and the responsibility of Your professional staff. You further acknowledge and agree that: (a) Services do not make management decisions and are not a substitute for competent, properly trained, and knowledgeable staff who bring professional judgment and analysis to the information presented by the Services; (b) You are responsible for verifying the accuracy of all Customer Data and determining the information necessary for You and Your Users to make management decisions, as well as for complying with all laws, regulations, and franchise requirements (if any) applicable to Your business; (c) You are responsible for establishing and maintaining reasonable quality control procedures to ensure the accuracy of Customer Data input to the Services; (d) You and Your Users shall consider all relevant information presented by the Services and may give whatever weight You deem appropriate to the information produced by the Services in the conduct of Your business and the performance of Users’ functions; (e) You have reviewed and will communicate to Users who use and access the Services any Documentation which may be provided to You by Us from time to time; (f) although certain of Our products may be designed to facilitate Your compliance with various regulatory requirements that may be applicable to You, You are responsible for understanding the regulatory requirements applicable to Your business and for selecting and using the Services in a manner that complies with the requirements applicable to You; and (g) it is Your responsibility to be informed about any changes or developments in regulations that may be applicable.
18.2 You acknowledge that the Internet and telecommunications providers’ networks are inherently insecure and that the Communication Services may transmit Your data over these networks when You use the Communication Services. Accordingly, You agree We are not liable for any changes to, interception of, or loss of Customer Data while in transit via the Internet or a telecommunications provider’s network in connection with Your use of the Communication Services.
18.3 Compliance. You shall at all times comply with all applicable federal and state laws and regulations while using Services or Communication Services, including, as applicable, the Gramm-Leach-Bliley Act, the FTC Safeguards Rule, the CAN-SPAM Act, the Telephone Consumer Protection Act (TCPA), state call-recording laws, and federal and state Do Not Call registries (“Applicable Laws”). Applicable Laws include all laws requiring (i) consent be obtained prior to transmitting, recording, collecting, or monitoring data or communications or (ii) compliance with opt-out requests for any data or communications. You will provide reasonable cooperation regarding information requests from law enforcement, regulators, or telecommunications providers in connection with Your use of the Communication Services. To the fullest extent permitted by law, You shall indemnify, defend, and hold harmless ZipDeal, including Our officers, directors, agents, employees, subsidiaries, affiliates, parents, successors and assigns, from any claim, demand, cause of action, debt, or liability (including reasonable attorneys’ or legal fees, investigation costs, expenses, and court costs) that arises out or relates to Your violation of any Applicable Laws.
18.4 MESSAGING POLICY. YOU MUST COMPLY WITH ALL APPLICABLE LAWS, RULES AND REGULATIONS RELATING TO MESSAGES AND, WHERE REQUIRED, YOU MUST ENSURE THAT PROPER CONSENT IS OBTAINED FROM MESSAGE RECIPIENTS IN ACCORDANCE WITH APPLICABLE LAWS, RULES AND REGULATIONS. YOUR USE OF OUR MESSAGE PLATFORM IS SUBJECT TO OUR MESSAGING POLICY. WE RESERVE THE RIGHT TO SUSPEND OR REMOVE ACCESS TO OUR MESSAGE PLATFORM IF YOU ARE NOT COMPLYING WITH OUR MESSAGING POLICY. IF YOU USE COMMUNICATION SERVICES TO SEND MESSAGES, YOU REPRESENT AND WARRANT THAT YOU HAVE OBTAINED ALL NECESSARY CONSENTS REQUIRED UNDER APPLICABLE LAW TO SEND SUCH MESSAGES.
SECTION 19. EXPORT COMPLIANCE AND USE RESTRICTIONS
The Services may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. You agree to comply with all such laws and regulations as they relate access to the Services. You represent that You are not named on any U.S. government restricted-party list. You will not permit any User or End-User to access or use any Service in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria or Crimea), and will not permit a Service to be used for any prohibited end use.
SECTION 20. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment-related taxes.
SECTION 21. NOTICE
All notices provided by Us to You under this Agreement may be delivered in writing by (a) nationally recognized overnight delivery service (“Courier”) or first-class certified U.S. mail to the billing address provided by You on any Order Form or otherwise notified to Us by You in writing; or (b) electronic mail to the electronic mail address provided for You and/or Your Users, or by (c) in-product notifications. You must give notice to Us in writing by Courier or first-class certified U.S. mail to Zip Deal, LLC, 2675 Brice Rd, Suite B, Columbus Ohio 43232; Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if delivered by Courier or first-class certified U.S. mail upon the earlier of (i) receipt or (ii) the date of delivery recorded by the Courier or U.S Postal Service. You may give notice of an updated billing address by email addressed to: email@example.com.
SECTION 22. GOVERNING LAW; DISPUTE RESOLUTION
This Agreement shall be governed by the laws of the State of Ohio without reference to conflict of laws principles. The United States Arbitration Act (Title 9 US Code) shall govern the interpretation and enforcement of the arbitration clause in this Agreement. If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, any unresolved controversy or claim arising from or relating to this contract or breach thereof shall be settled: (1) at Our election by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and in such case (a) judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, (b) the place of arbitration shall be Columbus, Ohio, and (c) except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties; or (2) in the event that We do not elect arbitration as permitted in point (1) above, exclusively in the United States District Court for the Southern District of Ohio or, if such court does not have jurisdiction, in any court of general jurisdiction in Franklin County, Ohio and each party consents to the exclusive jurisdiction of any such courts and waives any objection which such party may have to the laying of venue in any such courts. We retain the right to apply to any court of competent jurisdiction for provisional and/or conservatory relief, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible with an election to arbitrate or a waiver of the right to arbitrate. Any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
SECTION 23. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE
23.1 This Agreement is the entire agreement between ZipDeal and You regarding Your use of Beta Services, Communication Services, Content, Non-ZipDeal Products, and Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
23.2 Order Forms are not intended to be separate or distinct contracts; Order Forms are intended to form part of this Agreement and to be subject to and governed by the terms and conditions of this Agreement.
23.3 Data Transfer Authorization Forms are not intended to be separate or distinct contracts; Data Transfer Authorization Forms are intended to form part of this Agreement and to be subject to and governed by the terms and conditions of this Agreement.
23.4 The parties agree that any term or condition stated in a Customer purchase order (other than an Order Form) or in any other Customer order documentation (excluding Order Forms) is void.
23.5 The terms of this Agreement supersede the terms of any order form or statement of work entered into before the Effective Date.
23.6 In the event of any inconsistency or conflict between the terms of the General Terms and the terms of any Order Form entered into on or after the Effective Date, the terms of the Order Form shall control.
23.7 In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form; (2) the applicable Supplemental Terms; (3) the applicable Data Transfer Authorization Form(s); (4) these General Terms; and (5) the Documentation.
SECTION 24. MISCELLANEOUS
24.1 Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
24.2 Waiver. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
24.3 This Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties. Without limiting the generality of the foregoing, the Agreement does not and is not intended to confer any rights or remedies on any User or End-User.
24.4 Any uncertainty or ambiguity with respect to any provision of this Agreement shall not be construed for or against any party based on attribution of drafting to either party.
24.5 Any enumeration of Our rights and remedies set forth in this Agreement is not intended to be exhaustive. Our exercise of any right or remedy under this Agreement does not preclude the exercise of any other right or remedy. All of Our rights and remedies are cumulative and are in addition to any other right or remedy set forth in this Agreement, any other agreement between the parties, or which may now or subsequently exist at law or in equity, by statute or otherwise.
24.6 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
SECTION 25. DEFINITIONS
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
“Account” means all Services ordered by You.
“Affiliate” means, with respect to an entity, any entity that directly or indirectly controls, is controlled by, or is under common control with such entity, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Analytics Data” means data, other than Customer Data, that is generated in connection with Your use of any Services, including log, performance, usage, referral, search term, pixel, session, cookie, flash local storage object, beacon, and other web analytics data.
“ZipDeal” means Zip Deal, LLC., an Ohio limited liability company, or any of its successors or assignees.
“Banking Day” means any day on which banks in the United States are open to the public for carrying on substantially all banking functions.
“Beta Services” means a product, service, or functionality provided by Us that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
“Communication Services” means Message and/or email functionalities.
“Confidential Business Information” means all Confidential Information that is not Customer Data, including, without limitation, Your Users’ Personal Data and Account information.
“Confidential Information” has the meaning ascribed to it in Section 5.1.
“Content” means information obtained by Us from publicly available sources or Our third party content providers and made available to You through the Services or pursuant to an Order Form, as more fully described in the Documentation.
“Content Price Increase” means an increase in the price of third-party Content charged by a third-party Content provider to Us.
“Customer”, “You”, “Your” or “Yours” means in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and all Affiliates of that company or entity (for so long as they remain Affiliates).
“Customer Data” means a subset of Confidential Information comprised of electronic data, text, messages, communications or other materials submitted to and stored within a Service by You, Users, and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data (but shall not include the Personal Data of Your Users), excluding Content and Non-ZipDeal Products.
“Customer Device” means any server, computer, or mobile device that is owned or controlled by You, including disks, drives, and other storage media used therewith.
“Customer Device Data” means electronic data, text, messages, communications or other materials stored on a Customer Device by You, Users, or End-Users in connection with Your use of Services. “Customer Device Data” may include, without limitation, Personal Data.
“Data Controller” means the party who determines the purposes for which and the means by which Personal Data is processed.
“Data-Export Integration” means a service whereby We transfer Customer Data from the Services to a Non-ZipDeal Service authorized by You.
“Data-Import Integration” means a service whereby We import data and/or content into the Services, from a Non-ZipDeal Service selected by You.
“Data Processor” means the party who processes Personal Data only on behalf of the Data Controller.
“Data Transfer Authorization Form” means Our generated data-transfer-authorization form(s) or Our online data-transfer-authorization document or process completed by You and authorizing Customer Data to be provided to the ISP specified by You therein.
“DMS” means a third-party Web-based, mobile, offline or other software dealer management system.
“DMS Provider” means the provider of a DMS.
“Disclosing Party” has the meaning ascribed to it in Section 5.1.
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities or limitations of the Communication Services or Services that are made available by Us to You on the Site, as updated from time to time, provided, however, that Documentation excludes community moderated forums provided or accessible through the Site. Documentation includes Our Minimum System Requirements.
“End-User” means any person or entity other than You or User with whom You or Users interact while using a Service.
“Force Majeure Event” means any circumstances beyond Our reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, telecommunications service provider failure or delay, Non-ZipDeal Services, Non-ZipDeal Software, or acts undertaken by third parties, including without limitation, denial of service attack.
“Free Services” means Services that We make available to You free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“Integration” means a Data-Export Integration or a Data-Import Integration.
“Integration Fee” means a fee charged by Us for an Integration including, (i) an initial activation fee for the activation of an Integration, (ii) a recurring monthly data integration surcharges for an Integration, (iii) a re-activation fee for the reactivation of any Integration that has been deactivated, or (iv) any other one-time fee based on usage or other metric(s).
“Intellectual Property Rights” means any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
“ISP” means the provider of a Non-ZipDeal Service with whom You elect to integrate Services. “ISP” includes an OEM or DMS Provider with whom You elect to integrate Services.
“Malicious Software” means any code, files, scripts, viruses, malware, Trojan horses, time bombs, or any other similar software intended to do harm.
“Message” means a SMS, MMS, Chat, or WhatsApp message.
“Messaging Policy” means Our messaging policy located at https://www.zipdeal.com/messaging-policy as this policy may be updated or modified from time to time by Us with prior written notice to You.
“Minimum System Requirements” means Our minimum system requirements located https://www.zipdeal.com/minimum-system-requirements (or other web address notified by Us to You in writing from time to time), as these requirements may be modified by Us from time to time with prior written notice to You.
“Non-ZipDeal Product” means a Non-ZipDeal Service or Non-ZipDeal Software. “Non-ZipDeal Product” includes Your DMS (if any).
“Non-ZipDeal Services” means a Web-based, mobile, offline or other software application functionality that (i) interoperates with a Service and (ii) is provided by You or a third party, including, without limitation, Non-ZipDeal Services which may be integrated directly into Your Account by You or at Your direction. Non-ZipDeal Services, other than those obtained or provided by You, will be identifiable as such. “Non-ZipDeal Services” include Your DMS (if any).
“Non-ZipDeal Software” means a non-ZipDeal software application procured by You from a third party.
“OEM” means Your franchisor or other automobile manufacturer with whom You elect to integrate Services.
“Setup” means collectively Customization and Training as further specified in the Supplemental Terms for Setup Services.
“Order Form” means Our generated service order form or Our online ordering document or process completed, referencing this Agreement and specifying the Services, Support Service, or other product or service to be provided hereunder that is entered into between You and ZipDeal. “Order Form” includes any order completed by You in an online purchasing portal on Our Site. “Order Form” does not include any Customer-drafted purchase order or any other Customer-drafted document.
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
“Personnel” means employees and/or non-employee service providers and contractors of ZipDeal, engaged by ZipDeal in connection with performance hereunder.
“Planned Downtime” means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.
“Processing/to Process/Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Purchased Services” means Services that You purchase under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
“Receiving Party” has the meaning ascribed to it in Section 5.1.
“Service(s)” means the services that are ordered by You online through a link or via an Order Form, whether on a trial or paid basis, made available online by Us, via the applicable Customer login link and other web pages designated by Us. “Services” exclude Non-ZipDeal Products and Support Services. From time to time, the names and descriptions of the Services or any individual Service may be changed. To the extent You are given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
“Site” means a website operated by ZipDeal, including https://www.zipdeal.com/, as well as all other websites that ZipDeal operates (but shall not include the Services).
“Subscription Charges” means all charges associated with Your access to and use of an Account.
“Supplemental Terms” means the additional terms and conditions that are: (a) referenced in these General Terms; (b) included or incorporated on an Order Form via hyperlink or other reference (e.g. when a Service is purchased); (c) included or incorporated on an Data Transfer Authorization Form via hyperlink or other reference; (d) applicable to Beta Services chosen by You; (e) applicable to Support Services when ordered by You; or (f) applicable to a free trial or to free services when chosen by You.
“Supplemental Terms for Setup” means the supplemental terms for setup set out in Attachment 1 hereto.
“Support Services” means Integrations or standard support.
“Taxes” has the meaning ascribed to it in Section 4.13 (Taxes).
“Usage Charges” means variable one-time or recurring charges based on measurements of actual or authorized use (for example text messages exceeding authorized limits or certain metered transactions) that are incurred by You relating to the use of certain features and functionality that You enable within a Service or Communication Services.
“User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees and authorized Contractors; provided, however, that Users do not include any employees, consultants, contractors or agents of any competitor of Ours.
“User Login” means a unique username and associated password provisioned to an identifiable individual to permit them to access the Services.
SUPPLEMENTAL TERMS FOR SETUP
SECTION 1. Applicability
These Supplemental Terms for Setup are applicable to Our performance of Setup services and Your use of Setup services.
SECTION 2. SETUP DESCRIPTION
2.1 Setup Description. Setup comprises the following services:
(a) the customization services (if any) notified to You in writing by Our Client Success Manager (“Customization”);
(b) the training (if any) notified to You in writing by Our Client Success Manager (“Training”).
2.2 Normal Business Hours. All Setup will be performed during the normal business hours of Our normal business days (Monday to Friday 9:00 am – 5:00 pm, excluding ZipDeal holidays) (“Normal Business Hours”). Unless otherwise agreed in writing between the parties, We make no commitment that ZipDeal Personnel will start or cease work at a particular time of day or on particular days. If You request Setup services outside of Our Normal Business Hours, We may invoice You, and You shall pay Us the additional fees corresponding to the hours worked outside of the Normal Business Hours. Additional fees (if any) are calculated on a time-and-material basis at Our then-prevailing rates for labor and related items, in effect at the time supplied.
2.3 Estimated Setup Start Date. The Estimated Setup Start Date is an estimate only. You acknowledge that any delay in accepting the Order Form or in paying the Setup Fees may result in a delayed start of the Setup. You further acknowledge that a delayed start of the Setup may result in a delayed Go Live Date.
2.4 Estimated Go Live Date. The Estimated Go Live Date is an estimate only. You acknowledge that any delay by Your personnel in completing customization tasks or training courses may result in a delayed Go Live Date.
2.5 Services Subscription Required. You acknowledge that Setup requires a paid subscription to the Services.
SECTION 3. Setup Fees
3.1 Setup Fees. You shall pay the fees for the Setup services (“Setup Fees”) as specified in the Order Form and any additional fees as further specified herein. The Setup Fees include only those Setup services specified in Section 2.1. The Setup Fees do not include any additional services or additional fees (as further described in Section 3.5). All fees are exclusive of applicable taxes and duties.
3.2 Invoicing. The Setup Fees may, at our discretion, be invoiced prior to the performance of Setup. Additional fees may be invoiced (at Our discretion) prior to the performance of any additional Setup services.
3.3 Payment Terms. Unless otherwise stated in the applicable Order Form, invoiced fees are due net 15 days from the invoice date. If You fail to observe the payment terms specified in the Order Form, then We may, without limiting Our other rights and remedies hereunder suspend performance of any Setup until Your account is current. We may require payment of additional fees (if any) prior to performance of additional Setup services (if any).
3.4 Services Subscription Fees. The Setup Fees do not include any subscriptions to Services.
3.5 Additional Fees. The pricing for Setup is conditioned on (i) Your fulfillment of Your responsibilities set out in Section 5 (Customer Responsibilities) hereof and (ii) the accuracy and completeness of the Customer Information (collectively the “Dependencies”). Any variance from or exceptions to those Dependencies, or change requests received from You, may result in additional fees. Unless otherwise agreed in writing by Us, additional fees (if any) are calculated at Our then-prevailing rates in effect at the time performed. Unless otherwise agreed in writing by Us, additional fees for Setup services are determined by multiplying the number of hours of service performed by Our applicable service rates in effect at the time services are performed.
SECTION 4. Exclusions
4.1 Setup does not include subscriptions to Services.
4.2 Setup does not include: (i) configuration, installation, or integration of Computer Equipment into Your internal network; or (ii) troubleshooting, maintenance, or repair of Computer Equipment.
4.3 “Computer Equipment” means computer equipment, networking equipment, or printer, or any accessory, peripheral, or consumable associated therewith.
4.4 Setup does not include: (i) detecting or remediating Malware on Customer Devices; or (ii) detecting or responding to Customer Device Security Breaches. We are not responsible for any Malware encountered on Personal Computers or other Customer Devices or problems or malfunctions resulting therefrom.
4.5 “Malware” means any thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of a Customer Device, telecommunications service, Your network or any other service or device, including worms, trojan horses, viruses and other similar things or devices.
4.6 “Customer Device Security Breach” means an event that may lead to unauthorized disclosure, access, corruption, or destruction of Customer Device Data, including a User accessing information inappropriately, a third party penetrating or attempting to penetrate Your security controls, and a virus (or other piece of Malware) on a Customer Device.
SECTION 5. Customer Responsibilities
5.1 Minimum System Requirements. It is Your responsibility, at Your risk and expense, to procure, maintain, and utilize computer equipment, networking equipment, Non-ZipDeal Software, and high-speed internet service that meets our Minimum System Requirements. You can see Our current Minimum System Requirements here https://www.zipdeal.com/minimum-system-requirements. Our performance of Setup is conditioned upon Your meeting Our Minimum System Requirements. We are not responsible for any fees, costs, or other expenses connected with Your procurement, maintenance, or use of any computer equipment, networking equipment, Non-ZipDeal Software, or high-speed internet service required to comply with Our Minimum System Requirements.
5.2 Telecommunication, Cellular, Network Connections. You are responsible for the proper installation, connection, maintenance, and repairs of any telephone line, LAN, internet service, or other system or network as specified in the Minimum System Requirements. We have no responsibility for the foregoing.
5.3 Delivery of Customer Information. You will provide ZipDeal Personnel with the technical information, documentation, data, and information requested by Us (“Customer Information”) in connection with the performance of Setup. If You fail to provide ZipDeal Personnel with Customer Information, then We may not be able to perform all or part of the Setup.
5.4 Accuracy of Customer Information You are responsible for ensuring the accuracy and completeness of all information You provide to Us in connection with Setup. You acknowledge that Our ability to deliver Setup depends upon the accuracy and completeness of the information You provide to Us. You acknowledge and agree that We will perform the Setup in reliance upon the information provided by You.
5.5 Assistance and Cooperation. You acknowledge that Our ability to deliver Setup depends upon Your full and timely cooperation. For Us to timely and properly complete the Setup, You will need to respond to requests by Our Client Success Manager for Customer Information or assistance within two (2) business days after Our request. You shall ensure that Your personnel are skilled and knowledgeable and that they diligently assist Us in the Setup. You shall ensure that Your key personnel do not schedule or take vacation time during the scheduled Setup time frame.
5.6 Customer ZipDeal Champion Responsibilities. You shall ensure that Your ZipDeal Champion:
(a) has authority to make decisions for You regarding the scope of the Setup, including, Customization and Training;
(b) works diligently with Us to facilitate Setup;
(c) serves as primary point person for scheduling Setup activity;
(d) collects information requested by Us for meetings;
(e) sets up and maintains user security restrictions in order to control access to Your Account.
5.7 Customer’s Responsibility for Virus Protection. We recommend that You: (i) routinely update Your anti-virus software; (ii) apply all security patches for Your operating system; (iii) install a firewall on Customer Devices; and (iv) routinely scan Customer Devices and electronic storage devices using a reliable industry-standard virus detection product to detect and remove any Malware. Undetected or unrepaired Malware may corrupt and destroy Your programs, files, and even Your hardware.
SECTION 6. Customization
6.1 We will use commercially reasonable efforts to perform the Customization tasks (if any) specified by Our Client Success Manager, pursuant to the schedule set by Us, as that schedule may be modified or updated by Us with notice to You in writing.
6.2 Your Information. You acknowledge that Our ability to perform Customization tasks depends upon the accuracy and completeness of the information You provide to Us. You are responsible for ensuring the accuracy and completeness of all information You provide to Us in connection with Customization. You further acknowledge and agree that We will perform Customization in reliance upon the information provided by You.
6.3 Your Cooperation. You acknowledge that our ability to perform Customization depends upon Your full and timely cooperation throughout the entire Setup. For Us to timely and properly complete the Customization, You must ensure that Your personnel participate in a Customization meetings scheduled during the Setup. You must also ensure that Your personnel respond to requests by ZipDeal’s Client Success Manager for Customer Information or assistance within two (2) days after Our request. You will ensure that Your personnel are skilled and knowledgeable, that they are adequately prepared for each scheduled Customization meeting, and that they diligently assist Us in the Customization. You will ensure that Your personnel do not schedule or take vacation time during the anticipated Setup time frame.
6.4 Repeating, Correcting, or Rescheduling of Customization Tasks. We are not responsible for performing, reperforming, or correcting Customization tasks, for which You or Your personnel have failed to perform the duties set out above (each a “Remedial Customization”). Remedial Customizations (if any) performed by Us will be charged to You on a time-and-materials basis at Our applicable service rates in effect at the time the service is performed.
6.5 You acknowledge that (i) any delay by Your personnel in providing Customization information, responding to Customization requests, or attending scheduled Customization meetings or (ii) any failure of Your personnel to perform the Customization duties set out above may result in a delayed Go Live Date.
SECTION 7. Training.
7.1. Live Onsite Training. “Live Onsite Training” is live on-site instructor-led training. We will use commercially reasonable efforts to provide the Live Onsite Training session(s) (if any) notified to You in writing by Our Client Success Manager at the training and dates specified by Our Client Success Manager.
7.2. Live Online Training. “Live Online Training” is a live online instructor-led training. Live Online Training is conducted virtually through teleconference or video conference. We will use commercially reasonable efforts to provide the Live Online Training session(s) (if any) notified to You in writing by Our Client Success Manager.
7.3 Anticipated Training Dates. Anticipated training dates are subject to change by Us with written notice to You.
7.4 Customer Responsibility for Training Attendance. You acknowledge that training is a vital part of the Setup process. Your ZipDeal Champion is responsible for ensuring that the right Customer personnel attend all ZipDeal training scheduled during the Setup and that the information required from You for each training session is ready for each training session. You must ensure that 80% of the applicable training is completed by Your personnel prior to the Go Live Date of the Service to which you have subscribed. You acknowledge that any delay by Your personnel in completing training courses may result in a delayed Go Live Date.
7.5 Failure to Attend Live Training. No refund or reduction of the Setup Fees will be granted for the failure of Your personnel to attend a scheduled Live Onsite Training session or a Live Online Training session. You acknowledge that the failure of Your personnel to attend training sessions as scheduled may result in a delay of the Setup and/or a delayed Go Live Date.
7.6 Rescheduled Live Training. If You request the rescheduling of a Live Onsite Training session or a Live Online Training session, then We will make commercially reasonable efforts to accommodate the request subject to the availability of Our trainers. We reserve the right to charge You an additional fee for any rescheduled training session. You acknowledge that the postponement of training sessions may result in a delay of the Setup and/or a delayed Go Live Date.
SECTION 8. Delays; Interruption of Setup.
We shall not be liable for any delays, however caused, or for interruptions of Setup caused by a Force Majeure Event. If a Force Majeure Event occurs, We are excused from whatever performance is prevented by the Force Majeure Event to the extent prevented.
SECTION 9. EXCLUSION AND LIMITATIONS OF LIABILITY
9.1 CUSTOMER ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THE SETUP SERVICES.
9.2 NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN, ZIPDEAL IS NOT LIABLE FOR THE CONTENTS OF ANY DATA TRANSFERRED EITHER TO OR FROM CUSTOMER DEVICES OR STORED BY CUSTOMER ON ANY CUSTOMER DEVICE.
9.3 ZIPDEAL IS NOT LIABLE FOR: (A) ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING OF SETUP; (B) THE COST OF PROCUREMENT OF SUBSTITUTE SETUP SERVICES; (C) BUSINESS INTERRUPTION; OR (D) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF SETUP SERVICES.
9.4 LIMITATIONS OF LIABILITY. IN NO EVENT SHALL ZIPDEAL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, COSTS OF DELAY, ANY FAILURE OF DELIVERY, LOSS OF DATA, REVENUE, PROFITS OR GOODWILL, COSTS OF LOST OR DAMAGED DATA, DOCUMENTATION, OR EQUIPMENT, OR LIABILITY TO THIRD PARTIES ARISING OUT OF OR RELATING TO THE SETUP, EVEN IF ZIPDEAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING CONTRACT, NEGLIGENCE, TORT OR WARRANTY). WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL ZIPDEAL’S AGGREGATE LIABILITY TO CUSTOMER FOR SETUP EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE APPLICABLE SETUP SERVICE. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY HEREIN SHALL SURVIVE THE TERMINATION OF THE AGREEMENT.