These Terms and Conditions (together with any Order Forms, Purchase Orders, Renewal Forms, SOWs, and any documents ancillaries thereto, the “Agreement”) govern the provision of the Services (as defined below) by Zoomin to the applicable Customer. In the event of a conflict between these Terms and Conditions and any other document ancillary hereto, unless otherwise explicitly stated, these Terms and Conditions shall prevail.
1. THE SERVICES
1.1. Subject to the terms and conditions of this Agreement, Zoomin shall provide the Customer with product content delivery software and services through its proprietary technology as hosted on a third party cloud service (“Services”). Zoomin shall provide the Services through an online instance of the Services for use by the Customer, identified by a unique Uniform Resource Locator (URL) (the “Environment”). Each application shall have both a setup Environment and a production Environment (together, the “Customer Environments”).
1.2. During the Term and subject to Customer’s compliance with the terms and conditions of this Agreement, Zoomin grants Customer a non-exclusive, non-transferable, non-sublicensable, limited, revocable right (i) for Customer’s employees, agents, representatives, contractors and clients who are permitted access to the Application by Customer ("Authorized Users"), not to exceed the number of Authorized Users set forth in any Order Form, to access the Application, for Customer’s business operations; and (ii) for Customer’s employees who are designated as administrators through the Customer Environment to use the Customer Environment to modify the Application according to the Service’s technical documentation (the "Documentation").
1.3. Technical availability of the Services shall be in accordance with the SLA Policy, support of the Services shall be in accordance with the Support Policy and if Zoomin, in its sole discretion, updates or upgrades the Service, such updates and upgrades shall be provided in accordance with the Release and Upgrade Policy (together, the "Policies"). Zoomin may, from time to time, update the Policies or any part thereof, upon fourteen (14) days prior notice (email will be sufficient). In the event that such change had a material adverse effect on the Services, the Parties shall attempt in good faith to reach a negotiated solution within 45 days. Should the Parties fail to reach a mutually acceptable solution, either Party may choose to terminate this Agreement by providing the other Party, promptly following the end of such negotiation, thirty (30) days' prior written notice.
1.4. From time to time Zoomin may invite the Customer to try, at no charge, Zoomin products or services that are not generally available to Zoomin's customers ("Beta Services"). The Customer may accept or decline any such trial at the Customer's sole discretion. Any Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Beta Services are provided for evaluation purposes only and are not subject to the Policies, are provided without any warranty and may be subject to additional terms. Zoomin may discontinue Beta Services at any time at its sole discretion.
2. CUSTOMER OBLIGATIONS.
Customer hereby undertakes:
2.1. to manage and secure all login credentials used by Authorized Users in connection with their use of the Applications, and protect the same against unauthorized use or disclosure. Customer shall be liable towards Zoomin for any misuse of the Application using Authorized Users credentials, and shall be liable towards Zoomin for any breach of this Agreement by an Authorized User;
2.2. to use the Services, and all related software and Documentation in compliance with all applicable laws and regulations, including but not limited to applicable data security and privacy laws;
2.3. to ensure that all activity under the Customer Environment, including the activity of Authorized Users are in accordance with any limitations contained in the applicable Order Form, and with Zoomin’s Acceptable Use Policy; and
2.4. not to make any representations and warranties to Authorized Users or to other third parties with respect to the features or capabilities of Services that are inconsistent with this Agreement, including all warranties and disclaimers contained in this Agreement or the Services.
In the event of a breach of Client’s obligations under this Section 2 which is not remedied within 5 business days following notice from Zoomin, Zoomin may immediately suspend Customer's access to the Services. If the parties cannot resolve the breach within 30 days of such suspension, Zoomin may terminate this Agreement for material breach.
3. FEES AND PAYMENT TERMS.
In consideration for the Services, the Customer shall pay Zoomin the Fees set forth in the Order Form. Zoomin reserves the right to correct typographical or mathematical calculation errors in the Fees without penalty. Unless provided otherwise in the Order Form, Fees shall be payable in advance for the full Subscription Term, within 30 days of the Effective Date. All payments not made when due, shall be subject to a late charge of 1.5% per month compounded annually. Payment of Fees shall be made by wire transfer or ACH to the account designated by Zoomin from time to time. The Fees are exclusive of any applicable taxes. Zoomin may increase the Fees at the end of the Initial Subscription and each Renewal Term, provided the Fee shall not increase by more than five percent (5%) year over year if the scope of services have not changed.
4. PROPRIETARY RIGHTS
4.1. All intellectual property rights in the Services, Documentation and any part thereof, including any and all derivatives, changes and improvements thereof lie exclusively with Zoomin. The Customer shall (i) not attempt to infiltrate, hack, reverse engineer, decompile, or disassemble the Service or any part thereof for any purpose; (ii) not represent that it possesses any proprietary interest in the Service, Documentation or any part or derivative thereof; (iii) not directly or indirectly, take any action to contest Zoomin’s intellectual property rights or infringe them in any way; (iv) except as specifically permitted in writing by Zoomin, not use the name, trademarks, trade-names, and logos of Zoomin; (v) except as specifically permitted herein, not copy any part or content of the Service, reports or Documentation other than for Customer’s own business purposes; (vi) not copy any features, functions or graphics of the Services or use it to build a competitive product or service; and (vii) not remove any proprietary notices contained on or in the Service, or Documentation.
4.2. The limitations under Section 4.1 above shall not apply to any electronic data or information uploaded, submitted or generated by the Customer, or anyone on its behalf, into or through the Services or the Application, any Customer Data and any material that has been submitted to Zoomin by the Customer or purchased by the Customer from a third party and delivered to Zoomin for use in the Application (the "Customer Materials"), including as such Customer Materials are incorporated into the Service. All intellectual property rights in the Customer Materials lie exclusively with Client or its licensors. The Customer shall take no action, directly or indirectly, to register Zoomin trademarks (or their variation), domain names, or copyrights in its own name and shall provide commercially reasonable assistance to Zoomin to prevent the occurrence of such activity by any third parties.
4.3. Customer hereby grants to Zoomin a worldwide, royalty-free, nonexclusive license to use the Customer Materials as necessary to provide the Services, including generating the New Customizations (as defined below), in accordance with this Agreement. The Customer represents and warrants that it has obtained all necessary rights and licenses to the Customer Materials to grant the rights and licenses provided to Zoomin hereunder. Zoomin shall have all rights, title and interest in and to any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including Authorized Users, relating to the operation of the Services, to the extent such suggestions are accepted by Zoomin and incorporated into the Services.
4.4. Applications may include functional or visual changes required by the Customer that are not delivered by Zoomin as part of the generally available version of the Services and the underlying technology, if the parties agree so in advance and in writing (each, a "New Customization"). New Customizations will be deemed part of the Services for the purpose of Section 4.1 above and all rights therein shall vest in Zoomin.
4.5. If the Customer, a third-party acting on the Customer's behalf, or an Authorized User creates applications or program code using the Services (including a New Customization), the Customer hereby authorizes and grants Zoomin a license to host, copy, transmit, display and adapt such applications and program code, as necessary for Zoomin to provide the Services in accordance with this Agreement. The Customer will be solely responsible and liable with respect to any such applications or program code.
4.6. Zoomin has the right, but not the obligation, to monitor any New Customization and Customer Material. To the extent that any New Customization or Customer Material is in violation, at Zoomin's sole discretion, of this Agreement or of any applicable law, Zoomin may take such action that is appropriate, including without limitation, removal of such New Customization or Customer Material. Notwithstanding the foregoing, unless prohibited by applicable law, prior to terminating this Agreement or suspending the Customer Environment, the Parties shall attempt in good faith to reach a negotiated resolution within 5 days.
5. CUSTOMER DATA
5.1. "Customer Data" means any personal data or personally identifiable information, as such terms are defined by applicable law, collected on or from Authorized Users in their use of the Services. Customer Data shall not include anonymized and aggregated usage data collected by Zoomin in performance of the Services, including from use of the Services by Authorized Users.
5.2. As between the Parties, the Customer will own all rights, title and interest in and to all of the Customer Data which will be deemed Customer’s Confidential Information. Customer will be solely responsible and liable for the legality, reliability, integrity, accuracy and quality of all such Customer Data and of the means by which the Customer collects and processes such Customer Data. The Customer is responsible for, and will obtain all necessary consents and maintain all necessary notices in place to allow Zoomin to lawfully process the Customer Data in accordance with the terms hereof.
5.3. Zoomin will not knowingly use or access any Customer Data unless authorized to do so by Customer in writing, or as required in connection with Zoomin’s performance hereunder, including for the maintenance, repair, customization, or improvement of the Services or otherwise in connection with the Services.
6. THIRD-PARTY SOFTWARE
6.1. For the purposes of this Section 6, "Third-Party Software" means any online or offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party software; "Embedded Third-Party Software" means such Third-Party Software that is embedded in the Services and part of the Services provided under this Agreement; and "External Third-Party Software" means such Third-Party Software that is interoperable with the Services but is not part of the Services, the access to which needs to be obtained by the Customer.
6.2. The Services may include Embedded Third-Party Software. Zoomin may replace any Embedded Third-Party Application, at its discretion, provided such replacement does not result in degradation of the Services. Embedded Third-Party Software will be considered part of the Services solely for the purpose of the Policies.
6.3. The Services may contain features designed to interoperate with External Third-Party Software (for example Salesforce.com). Customer is responsible for obtaining any necessary licenses for External Third-Party Software. If such External Third-Party Software no longer enables interoperation with the corresponding Service features on reasonable terms, Zoomin may cease providing such features as part of the Services without entitling the Customer to any refund, credit, or other compensation. Zoomin makes no representation, warranty or obligation and excludes all liability for External Third-Party Software.
7.1. The receiving party agrees (i) not to disclose the disclosing party’s Confidential Information to any third parties other than to its directors, employees, advisors, or consultants (collectively, its “Representatives”) on a “need to know” basis and provided that such Representatives are bound by confidentiality obligations not less restrictive than those contained herein; (ii) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (iii) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if the receiving party is required by legal process or applicable law, rule, or regulation to disclose any of the disclosing party’s Confidential Information, then prior to such disclosure, if legally allowed, receiving party will give prompt notice to the disclosing party so that it may seek a protective order or other appropriate relief. The confidentiality obligations hereunder shall expire three years from the date of termination or expiration of this Agreement and shall supersede any previous confidentiality undertakings between the parties.
7.2. For the purposes hereof, "Confidential Information" means any proprietary or trade secret information disclosed by one party to the other which can be reasonably understood under the circumstances to be confidential, but excluding any information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) the receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement and/or any use of or reference to the Confidential Information.
8. WARRANTIES AND DISCLAIMERS
8.1. Each Party represents and warrants that: (i) it is duly organized and validly existing under the laws of the jurisdictions of its organization or incorporation; and (ii) it has the power to execute this Agreement, to perform its obligations under this Agreement and has taken all necessary actions in order to authorize such execution and performance.
8.2. EXCEPT AS OTHERWISE EXPLICITLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY. ZOOMIN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ANY WARRANTY THAT THE SERVICES WILL MEET CUSTOMER'S OR AUTHORIZED USERS' REQUIREMENTS OR NEEDS OR THAT THE SERVICES OPERATION WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE, OR AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN THE SERVICES CAN OR WILL BE CORRECTED.
9.1. EXCEPT FOR WILLFUL MISCONDUCT OR FRAUD, OR WITH RESPECT TO INDEMNIFICATION OBLIGATIONS HEREUNDER, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY'S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY THE CUSTOMER TO ZOOMIN DURING THE 12 MONTHS PRECEDING THE DATE THE LIABILITY FIRST AROSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA (INCLUDING END-USER INFORMATION), COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Zoomin shall defend, indemnify and hold the Customer harmless, from and against any claims, damages, costs, liabilities and expenses (including reasonable attorneys’ fees) arising out of or related to any third party claim that the Customer’s use of the Service in accordance with the terms hereof infringes such third party’s intellectual property right, provided that Zoomin will have no obligation to indemnify the Customer to the extent the claim arises out of: (i) the Customer Data; (ii) the Customer's use of the Services together with Customer Materials, any Third Party Software, New Customization or any other software, code, system, data, material or integration of the Customer or any third-party other than as authorized by this Agreement or the Order Form.
9.3. The Customer shall defend, indemnify and hold Zoomin harmless from and against any claims, damages, costs, liabilities, and expenses (including reasonable attorney’s fees) arising out of or related to any claim made or brought against Zoomin by a third party alleging that: (i) the collection, storage and use of the Customer Data in connection with the Services or this Agreement violates such third party's privacy, moral, or other personal or proprietary rights; or (ii) the Customer's use of the Services, any Third Party Software, or New Customization, other than as expressly permitted under this Agreement, infringes or misappropriates the intellectual property rights of a third-party or violates any applicable law or regulation.
9.4. Indemnification under this Section 9 shall be conditioned upon the party seeking indemnification (a) promptly notifying the indemnifying party in writing of the claim; (b) allowing the indemnifying party to assume sole control of the defense and settlement of the claim; and (c) providing the indemnifying party with all reasonable assistance in the defense, at the indemnifying party’s expense.
9.5. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
10. TERM AND TERMINATION
10.1. The Agreement shall commence on the Effective Date and continue for the Initial Subscription stated in the Order Form. Following the Initial Subscription, the Agreement shall automatically renew for consecutive periods of the same length as the Initial Subscription (each, a "Renewal Term" and together with the Initial Term, the "Term"), unless either party notifies the other of its intent not to renew at least 90 days prior to the expiration of the then current Term.
10.2. Either Party may terminate this Agreement due to a material breach of this Agreement: (i) upon thirty (30) days' prior written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period (without affecting any other right of the non-breaching Party); or (ii) immediately, 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, and such proceedings have not been terminated within thirty (30) days.
10.3. If the Customer terminates this Agreement due to a material breach of this Agreement by Zoomin, Zoomin will refund the Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event will any termination relieve the Customer of the obligation to pay any fees payable to Zoomin for the period prior to the effective date of termination.
10.4. Upon termination of this Agreement however arising, the Customer shall immediately cease use of the Services. Zoomin will retain any Customer Material for a period of ninety (90) days following the termination and will deliver, upon Customer's request, the Customer Material in industry standard format to the Customer at the Customer's expense. Thereafter Zoomin may permanently delete all Customer Material. Sections 4, 5, 7, 8, 9 and 13 will survive any termination or expiration of this Agreement.
Subject to Customer’s prior written consent Zoomin may issue publicity or general marketing communications concerning its involvement with the Customer. The Customer agrees that Zoomin may identify the Customer as a user of the Services and use the Customer's logo for promotional purposes on Zoomin's official website and collateral. The Customer hereby grants Zoomin a non-exclusive, worldwide, royalty-free, revocable license to use the Customer’s name, logo, and other trademarks or service marks in connection with any agreed use.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (i) personal delivery; (ii) the fourth (4th) business day after mailing; or (iii) the first (1st) business day after sending by email (provided email will not be sufficient for notices of termination or an indemnifiable claim). The addresses of the Parties will be as set out at the head of this Agreement, unless notified otherwise in writing.
This Agreement constitutes the entire agreement between the parties and supersedes any previous agreements or representations, either oral or written, with respect to the subject matter of this Agreement. All amendments will be made only in writing. Customer shall not transfer or assign its rights or obligations under this Agreement to any third party. Any purported assignment contrary to this section shall be void. Zoomin may assign its rights and obligations under this Agreement to an affiliate or to any third party in the context of a merger, change of control or sale of all or substantially all of its assets or shares, upon prior written notice to Customer. If any part of this Agreement is declared invalid or unenforceable for any reason, such part shall be deemed modified to the extent necessary to make it valid and operative and in a manner most closely representing the intention of the parties, or if it cannot be so modified, then eliminated, and such elimination shall not affect the validity of any remaining portion, which shall remain in force and effect. Any failure by a party to insist upon or enforce performance by the other of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services, or to this Agreement, must be filed within twelve months after such claim or cause of action arose or be forever barred. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without giving effect to its choice of law rules. The Parties irrevocably submit to the exclusive jurisdiction of the applicable courts located New York, New York, in connection with any claim, action, suit, or proceeding relating to or arising out of this Agreement, and the parties irrevocably waive, to the fullest extent permitted by law, any right to a jury trial.