Customer and Company will be individually referred to as “Party” and collectively as “Parties”.
Subject to Customer’s compliance with this Agreement and solely during the Subscription Term, Customer shall have the limited, non-exclusive, revocable right to access and use the Service(s) for Customer’s internal business purposes in accordance with the subscription plan as specifically stated in an Order Form.
10.1.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, LOST SALES, LOST GOODWILL, LOSS OF USE OR LOST CONTENT, IMPACT ON BUSINESS, BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, BREACH OF STATUTORY DUTY,NEGLIGENCE OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, RELATING TO THE SERVICE(S), WILL BE LIMITED TO AN AMOUNT EQUAL TO TWELVE MONTHS OF THE SUBSCRIPTION CHARGES PAID BY THE CUSTOMER FOR THE SERVICE(S) PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
10.2.IN JURISDICTIONS WHICH DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.3.NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, THE COMPANY DISCLAIMS ALL LIABILITIES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES OFFERED DURING THE TRIAL PERIOD.
11.1.Indemnification by Customer: Customer will indemnify and hold the Company harmless against any claim brought by a third party against the Company, its respective employees, officers, directors and agents arising from Customer’s acts or omissions in connection with clause 2 of this Agreement provided that (a) the Company promptly notifies Customer of the threat or notice of such a claim, (b) Customer will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such claim; and (c) the Company shall fully cooperate with the Customer in connection therewith.
11.2.Indemnification by Company: The Company will defend Customer, from any third-party claim alleging that Customer’s use of the Service(s) as contemplated hereunder infringes any third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold Customer harmless from and against any damages and costs awarded against Customer, or agreed in settlement by the Company (including reasonable attorneys’ fees) resulting from such IP Claim. The Company will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Service(s) by the Customer, or Customer’s Users; (ii) modification of the Service(s) by anyone other than the Company; or (iii) the combination, operation or use of the Service(s) with other data, hardware or software not provided by the Company. If Customer’s use of the Service(s) results or in the Company’s opinion is likely to result in an IP Claim, the Company may at its own option and expense (a) procure for the Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by the Company, then either Customer or the Company may terminate Customer’s subscription to the Service(s), and the Company shall refund to the Customer, on a pro-rated basis, any Fees that Customer has previously paid for the corresponding unused portion. This sections above state the Company’s entire liability and Customer’s exclusive remedy with respect to an IP Claim.
12.1.Entire Agreement and Revisions: This Agreement, including all schedules, exhibits and Order Form incorporated herein by reference, contains the entire agreement and understanding of the Parties and supersedes all prior communications, discussions, negotiations, proposed agreements, and all other agreements between the Parties, whether written or oral, concerning the subject matter herein. This Agreement may be amended only by a written agreement of the Parties and signed by the duly authorized agents of the Parties.
12.2.Relationship of the Parties: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship among the Parties.
12.3.Assignment: Except to either Party’s affiliates/within group companies, either Party may not, directly or indirectly, assign all or any part of this Agreement or rights under this Agreement or delegate performance of its respective duties under this Agreement without the prior consent, which consent shall not be unreasonably withheld, by the other Party. In the event of assignment to an affiliate/ group company, the party assigning its performance shall promptly intimate the other party of such assignment and shall not default in any of its payment obligations under 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.
12.4.Force Majeure: Notwithstanding anything to the contrary contained elsewhere, the Company shall not be liable for unavailability of the Service(s) caused by circumstances beyond the Company’s reasonable control, such as but not limited to, acts of God, acts of government, pandemic, epidemic acts of terror or civil unrest, technical failures beyond the Company’s reasonable control (including, without limitation, inability to access the internet, unauthorized loss, distribution or dissemination of Service Data), or acts undertaken by third parties, including without limitation, distributed denial of service attacks.
12.5.Governing Law and Dispute Resolution: This Agreement shall be governed by the laws of the State of Delaware. Customer hereby expressly agrees to submit to the exclusive personal jurisdiction of the courts in Delaware. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be first settled by arbitration administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the award may be entered in any court having jurisdiction. This clause will not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The language of the arbitration shall be English, and the seat shall be the State of Delaware.
12.6.Export Compliance: The Service(s) and Documentation, thereof may be subject to export laws and regulations of the U.S. and other applicable jurisdictions. Customer represents and warrants that Customer is not on any U.S. government prohibited list. Customer will not permit any User to access or use the Services or Documentation in a country or region that is embargoed by the U.S. or other applicable jurisdictions or in violation of any export law or regulation of the U.S. or other applicable jurisdictions.
12.7.Publicity Rights: Customer hereby grants the Compamy a royalty-free, worldwide, transferable license to use Customer’s trademarks or logos to identify the Customer as the Company’s customer on the Company’s websites and/or marketing collateral.
12.8.Notices and Consent to Electronic Communications: All notices to be provided by the Company to Customer under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery Service(s) (“Courier”) or to the contact mailing address provided by the Customer in the relevant Order Form; or (ii) electronic mail to the e-mail address provided by the Customer. The Company’s address for a notice to Us: (i)in writing by Courier is 1007, N Orange Street, 4th Floor, 1285 Wilmington 19801 Delaware U.S.A or (ii) by electronic mail is email@example.com. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
12.9.Survival: All clauses which, by their nature are intended to survive, including without limitation Clauses 4 (Intellectual Property Rights), 6 (Charges and Payment), 7 (Term and Termination), 8 (Confidentiality; Security and Data Privacy;), 9 (Disclaimer of Warranties), 10 (Limitation of Liability), 11 (Indemnification), 12 (Miscellaneous) and 13 (Definitions) shall survive any termination of this Agreement with respect to use of the Service(s) by the Customer. Termination shall not limit either Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
When used in this Agreement with the initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by the Customer or on Customer’s behalf for access and use of the Service(s).
API: means the application programming interfaces developed, enabled by or licensed to the Company that permits access to certain functionality provided by the Service(s).
Confidential Information: means all information disclosed by one Party to the other Party which is in tangible form and labelled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. For purposes of this Agreement, Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession; or (f) is required by law to be disclosed by the receiving party, provided that the receiving party shall, to the extent legally permitted, give the disclosing party written notice of such requirement prior to disclosing so that the disclosing party may seek a protective order or other appropriate relief.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Service(s) provided or made available by the Company to the Customer or Customer’s Users through the Service(s) or otherwise.
Order Form: means any service order form or statement of work specifying the Service(s) subscribed to, particular features and functionalities in the Service(s) that the Customer wishes to avail and the Subscription Term.\
Personal Data: means data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller.
Processing/To Process: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Sensitive Personal Information means information that relates to an individual’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health, or data concerning a natural person's sex life or sexual orientation. It also includes information about an individual's criminal offences or convictions, as well as any other information deemed sensitive under applicable data protection laws.
Service(s): means the Company’s cloud-based metering and billing services offered to the Customer and any new services that the Company may introduce as a service to which the Customer may subscribe to, and any updates, modifications or improvements thereto, including individually and collectively, Software, API and any Documentaiton.
Service Data: means all electronic data, text, messages, emails, personal data or other materials, including without limitation Personal Data of Users and end users, submitted to the Service(s) by the Customer through Customer’s Account or through integration with Third-party Service(s) in connection with Customer’s use of the Service(s).
Software: means software provided by the Company (either by download or access through the internet) that allows the Customer to use any functionality in connection with the Service(s).
Subscription Term: means the period during which Customer has agreed to subscribe to the Service(s) specified in the subscription plan or in a relevant Order Form
Third-party Service(s) shall mean third party application(s) or service(s) integrating with the Service(s) through APIs or otherwise enabled through the Service(s) which requires the Customer to have Customer’s own accounts with such third-party application(s) or service(s) in order to utilize them.
User: means those who are designated users within the Service(s), including an Account administrator, agents and other designated users.
Website(s) shall mean the websites owned and operated by the Company including www.zorp.one.