Last Revised 11.30.20.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF.
This agreement is between Zenput, Inc., a Delaware corporation (Zenput), and the Customer agreeing to these terms (Customer).
This agreement provides Customer access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, as specified on an order (Service). Implementation services (Implementation Services) may also be provided by Zenput if specified under an order.
USE OF SERVICE.a. Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between Zenput and Customer (Customer Data). Customer grants Zenput the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
b. Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
c. Customer Responsibilities. Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify Zenput promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service's user guide and applicable law.
d. Zenput Support. Zenput must provide Customer support for the Service under the terms of Zenput's Customer Support Policy (Support), which is located at support.zenput.com.
e. Reasonable Data Storage. Zenput may provide Customer the ability to store data collected through the Service on Zenput’s servers. If Zenput determines, in its sole discretion, that Customer is storing an unreasonably large amount of data (for example, an unreasonable amount of video recordings), which amount is greater than 10 gigabytes per license/store as set forth in the order, then Zenput may, upon prior written notice to Customer, impose additional charges or take other steps to mitigate this burden.
THE SERVICE IS PROVIDED ‘AS IS' WITHOUT WARRANTY. ZENPUT DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE ZENPUT TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, ZENPUT DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. ZENPUT DISCLAIMS ALL LIABILITY FOR CUSTOMER’S APPLICATION OF THE RESULTS DATA FROM THE SERVICE. CUSTOMER AGREES TO USE ITS BEST JUDGEMENT IN (I) REVIEWING AND ASSESSING THE ACCURACY OF THE RESULTS DATA, (II) QUESTIONING AND REJECTING ANY RESULTS DATA THAT APPEARS SUSPECT, AND (III) NOTIFYING ZENPUT OF ANY SUCH SUSPECT RESULTS DATA. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, 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 (Confidential Information). Zenput's Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below). Customer's Confidential Information includes, without limitation, the Customer Data.
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
d. Data Security Measures.
i. Security Measures. In order to protect Customer's Confidential Information, Zenput: (A) implements and maintains all reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, and will maintain the confidentiality, security, and integrity of such Confidential Information; (B) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (C) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer's Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of any safeguards in place to control these risks; and (D) designates an employee or employees to coordinate implementation and maintenance of (A) through (C) above which are collectively, Security Measures.
ii. Notice of Data Breach. If Zenput knows that Customer Confidential Information has been accessed, disclosed, or acquired without proper authorization and contrary to the terms of this agreement, Zenput will promptly alert Customer of any such data breach, and immediately take such actions as may be necessary to preserve forensic evidence and eliminate the cause of the data breach. Zenput will give highest priority to immediately correcting any data breach, and will devote such resources as may be required to accomplish that goal. Zenput will provide Customer with all available information reasonably necessary to enable Customer to fully understand the nature and scope of the data breach. To the extent that Customer, in its sole reasonable discretion, deems warranted, Customer may provide notice to any or all parties affected by any data breach. In such case, Zenput will consult with Customer in a timely fashion regarding appropriate steps required to notify third parties. Zenput will provide Customer with information about what Zenput has done or plans to do to minimize any harmful effect of the unauthorized use or disclosure of, or access to, Confidential Information.
a. Reservation of Rights. The Service and the Software and Documentation are the proprietary property of Zenput and its licensors, and all right, title, and interest in and to the Service and the Software and Documentation, including all associated intellectual property rights, remain only with Zenput. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. Zenput reserves all rights unless expressly granted in this agreement.
b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
c. Software and Documentation. All software provided by Zenput as part of the Service, including the Mobile Application as defined below, and the Service documentation, sample data, marketing materials, training materials, and other materials provided through the Service or by Zenput (Software and Documentation) are licensed to Customer as follows: Zenput grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software in accordance with the Documentation, solely in connection with the Service.
d. Mobile Application. Zenput makes available software to access the Service via a mobile device (Mobile Application). To use the Mobile Application, Customer must have a mobile device that is compatible with the Service. Zenput does not warrant that the Service will be compatible with Customer’s mobile device. Customer may use mobile data in connection with the Service and may incur additional charges from Customer’s wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that Zenput may, from time to time, issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades. Each user of the Mobile Application must agree to the terms of the End User License Agreement provided as part of the download of the Mobile Application, and Customer is responsible for each user’s use of the Mobile Application.
e. API. Zenput may provide access to its application-programming interface (API) as part of the Service, as further set forth in the order. Subject to the other terms of this agreement, Zenput grants Customer a non-exclusive, nontransferable, terminable license to interact only with the Service as allowed by the API.
- Customer may not use the API in a manner--as reasonably determined by Zenput--that exceeds reasonable request volume, constitutes excessive or abusive usage, or fails to comply with any part of the API. If any of these occur, Zenput can suspend or terminate Customer’s access to the API on a temporary or permanent basis.
- Zenput may change or remove existing endpoints or fields in API results upon at least 30 days notice to Customer, but Zenput will use commercially reasonable efforts to support the previous version of the API for at least 6 months. Zenput may add new endpoints or fields in API results without prior notice to Customer.
- The API is provided on an AS IS basis. Zenput has no liability to Customer as a result of any change, temporary unavailability, suspension, or termination of access to the API.
f. Statistical Information. Zenput may compile statistical information related to the performance of the Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. Zenput retains all intellectual property rights in such information.
TERM AND TERMINATION.
a. Term. This agreement continues until all orders have expired or are terminated for material breach under Section 7(b).
b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. Return of Customer Data.
i. Within 60 days after termination, upon request Zenput will make the Service available for Customer to export Customer Data as provided in Section 2(a).
ii. After such 60-day period, Zenput has no obligation to maintain the Customer Data and may destroy it.
d. Return Zenput Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay Zenput for any unpaid amounts and destroy or return all property of Zenput. Upon Zenput's request, Customer will confirm in writing its compliance with this destruction or return requirement.
e. Suspension for Violations of Law. Zenput may temporarily suspend the Service and/or remove the applicable Customer Data if it in good faith believes that, as part of using the Service, Customer has violated a law. Zenput will attempt to contact Customer in advance.
f. Suspension for Non-Payment. Zenput may temporarily suspend the Service if Customer is more than 30 days late on any payment due pursuant to an order.
a. Exclusion of Indirect Damages. Zenput is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
b. Total Limit on Liability. Except for Zenput's indemnity obligations, Zenput's total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount paid by Customer within the 12-month period prior to the event that gave rise to the liability.
- DEFENSE OF THIRD-PARTY CLAIMS.
a. Zenput will defend or settle any third-party claim against Customer to the extent that such claim alleges that Zenput technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies Zenput of the claim in writing, cooperates with Zenput in the defense, and allows Zenput to solely control the defense or settlement of the claim. Costs. Zenput will pay infringement claim defense costs it incurs in defending Customer, Zenput-negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, then Zenput may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If Zenput determines that none of these are reasonably available, then Zenput may terminate the Service and refund any prepaid and unused fees. Exclusions. Zenput has no obligation for any claim arising from: Zenput's compliance with Customer's specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by Zenput. THIS SECTION CONTAINS CUSTOMER'S EXCLUSIVE REMEDIES AND Zenput'S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
b. If a third party claims against Zenput that any part of the Customer Data is unlawful or infringes or violates that party's patent, copyright, or other right, Customer will defend Zenput against that claim at Customer's expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that Zenput promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
- GOVERNING LAW AND FORUM.
This agreement is governed by the laws of the State of California (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for San Franciso County, California, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys' fees and costs from the other party.
- OTHER TERMS.
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by Zenput.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
f. No Additional Terms. Zenput rejects additional or conflicting terms of a Customer's form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Trademarks and Logos. Subject to Zenput’s compliance with any logo or trademark usage guidelines or other usage instructions provided by Subscriber, Zenput may use Subscriber’s logos and trademarks solely for Zenput’s marketing purposes. Subscriber may revoke this authorization at any time.
j. Feedback. If Customer provides feedback or suggestions about the Service, then Zenput (and those it allows to use its technology) may use such information without obligation to Customer.